R v Freeman [2001] VSCA 37

[ 2001] VSCA 37

CRIMINAL LAW - Sentence - Armed robbery - Intentionally causing injury - Mistakenly sentenced for intentionally causing serious injury - Sentencing discretion reopened - Assistance given by appellant to authorities - Appeal allowed and sentence varied.

2. The circumstances giving rise to this appeal appear from the judgment of Coldrey, A.J.A. I agree with his Honour's conclusion that, were it not for the matter of the assistance given by the appellant to the authorities, there would be no reason for interfering with the sentence. I further agree with his Honour's view that, having regard to that assistance, the appellant should be re-sentenced to 4 years and 6 months' imprisonment on the armed robbery count. In addition, I agree that we should allow the sentence of one year's imprisonment on count 1 to stand. Where I differ is on the question of cumulation: Coldrey, A.J.A. would make the same order as that made by the judge, cumulating three months of the sentence on count 1, so as to give a total effective sentence of 4 years 9 months as a result of the reduction in the sentence for armed robbery. His Honour would reduce the non-parole period to 2 years 3 months. I would vary the order for cumulation made below by cumulating nine months of the sentence on count 1 upon the sentence on count 2, giving a total effective sentence of 5 years 3 months, and I would allow the non-parole period fixed by the judge - 2 years 9 months - to stand. In the result, on my proposal both the total effective sentence and the non-parole period determined upon by the judge would remain unaltered.

5. In addition we should direct the correction of the "quadruplicate". This wrongly records the offence of which the appellant was convicted on count 1 as intentionally causing serious injury. The associate's endorsement on the presentment does not require correction: it incorporates by reference the offence as charged in the presentment. A purist might argue that the appellant has been convicted of the wrong offence and that our proper course is to extend the time for the making of an application for leave to appeal against conviction and to allow such an appeal and set aside the conviction recorded, substituting for it a conviction of the offence of intentionally causing injury. The distinction between proceeding in this way and dealing with the matter on the existing appeal against sentence is really only one of form, and I think we may deal with the matter on this appeal against sentence by directing the correction of the "quadruplicate", treating the case as one of misdescription.

8. I shall now briefly state my reasons for my conclusion about the appropriate amount of cumulation and the appropriate non-parole period.

11. The Crown concedes that the sentencing discretion with regard to count 1 is reopened by the judge's mistaken belief that he was sentencing for intentionally causing serious injury, not intentionally causing injury. In any event, the judge's determination that he should not take into account the appellant's assistance to the authorities vitiated the exercise of the sentencing discretion on both counts. Not surprisingly, Mr Morrissey did not suggest that we should reduce the sentence on count 1.

14. A serious question arises as to whether that sentence should not be increased. Of course, the offender is not to be sentenced on the basis that the evidence discloses that he has really committed the more serious offence of intentionally causing serious injury, but that does not mean that the nature and extent of the injuries sustained are to be disregarded. Not infrequently, as it seems to me, the sentencing judge is put in a difficult position where, as the result of negotiations, a person who was originally charged with causing serious injury, and has in fact caused serious injury, pleads guilty to a presentment charging only the causing of injury. The judge cannot be required to sentence the offender in a vacuum, so to speak, as regards the injuries, although, as I have said, care must be taken not to treat the case as in truth an example of the more serious offence. In particular, of course, the applicable maximum penalty must always be borne in mind. But there is no reason why, in a case which is in fact one of serious injury, the sentencing judge should not look at the nature and extent of the injuries and characterise the case as lying in a serious category so far as the aspect of "injury" is concerned. The injured security guard had been struck a heavy blow to the head with a long heavy metal torch (the use of which as a bludgeon in these cases is by no means unknown), and had fallen heavily

to the ground. He had regained consciousness in hospital. The results of the head injury included broken teeth, a substantial loss of hearing in one ear and impaired vision in one eye. The guard was suffering from chronic post-traumatic stress disorder and by the time of sentence had been prevented by his injuries from returning to work.

18. The maximum penalty for intentionally causing injury was 10 years' imprisonment. I am surprised by the sentence of only one year's imprisonment passed by the judge. Even taking into account the assistance to the authorities provided by the appellant, it strikes me as a low sentence for this offence, and I have seriously considered proposing that it be increased. I also regard as very low the amount of cumulation ordered - only three months. In re-exercising the sentencing discretion I would propose that, while the sentence of one year's imprisonment on count 1 be allowed to stand, the order for cumulation made below be varied by directing that nine months of the sentence on count 1 be served cumulatively upon the sentence imposed on count 2, giving a total effective sentence, having regard to the new sentence passed on count 2, of 5 years 3 months, the same as that determined upon by the judge.

21. In the result I would allow the appeal and vary the sentence imposed in the Court below by substituting a sentence of 4 years 6 months' imprisonment for the sentence passed on count 2 (armed robbery) and by substituting for the direction for cumulation an order that nine months of the sentence imposed on count 1 be cumulative upon the sentence imposed on count 2. Otherwise I would confirm the sentence below. I would direct that the return of prisoners recording the sentence be amended by substituting for the words "intentionally causing serious injury" the words "intentionally causing injury". I would make an appropriate declaration of pre-sentence detention.

26. Having had the benefit of reading in draft the reasons prepared by Coldrey, A.J.A., I agree that for the reasons his Honour assigns it will be necessary to re-sentence the applicant.

29. In my opinion, however, the re-sentencing should not, in the circumstances of this case, carry with it a reduction in the sentence overall. The two offences were perpetrated during an escapade clothed with very appreciable criminality combining dishonesty with substantial actual violence to one man and a serious potential of danger to others. There were two immediate victims - the Armaguard organisation and the unfortunate McMahon, each of whom individually suffered considerable damage from an atrocious crime. The applicant did not enjoy the distinction of directing criminal conduct at once against his employer and a fellow employee; but his behaviour in concert is scarcely to be treated on that account as exhibiting less perversity than that of his confederate, who did. Moreover, the applicant's own calculated violence towards McMahon deserved special acknowledgment in the formulation of the sentence. In performing the task of re-sentencing this Court should seek - as I respectfully believe the sentence imposed below did not - to mark these considerations. I accordingly agree in the disposition of the application and in the direction for amendment of the "quadruplicate" proposed by Brooking, J.A.

34. The appellant, David William Freeman, was born on 3 December 1973. He is now aged 27 years. On 19 June 2000, the appellant was presented in the County Court at Melbourne on one count of intentionally causing injury contrary to s. 18 Crimes Act, (carrying a maximum penalty of 10 years' imprisonment) and one count of armed robbery contrary to s. 75A Crimes Act (carrying a maximum penalty of 25 years' imprisonment). The appellant pleaded guilty to both counts. He had no prior convictions.

37. 11 On 23 June 2000 the appellant was convicted of intentionally causing serious injury (albeit that he had pleaded guilty to intentionally causing injury) and was sentenced to be imprisoned for one year. He was further convicted of armed robbery and sentenced to be imprisoned for five years. It was ordered that three months of the sentence imposed on the first count be cumulative on the sentence imposed on the second count. This resulted in a total effective sentence of five years and three months' imprisonment. It was further ordered that the appellant serve a minimum of two years and nine months before being eligible for parole. A declaration was made that he had served pre-sentence detention of 16 days. As noted, it appears that the learned sentencing judge mistakenly sentenced the appellant in respect of the offence of intentionally causing serious injury rather than the offence on which the appellant was presented and to which he had pleaded guilty, namely, intentionally causing injury. The appellant had previously been presented on offences of intentionally causing serious injury and armed robbery and at the commencement of his plea, his Honour ordered the earlier presentment filed on 12 October 1999 be forever stayed and the current presentment be filed over.

40. The appellant's co-accused, David John Thompson, had earlier pleaded guilty on 3 November 1999 to one count of armed robbery arising from the incident involving the appellant. Thompson also pleaded guilty to one count of attempting to obtain property by deception contrary to s. 321M Crimes Act (an offence carrying a maximum penalty of five years' imprisonment). The count of attempting to obtain property by deception related to a false insurance claim submitted by Thompson on 27 January 1999.

43. On 10 November 1999 Thompson was convicted of both counts. In respect of the count of armed robbery he was sentenced to five years' imprisonment and in relation to the count of attempting to obtain property by deception he was sentenced to imprisonment for one year. It was ordered that three months of the sentence imposed in relation to the latter count be served cumulatively on the sentence imposed on the armed robbery count. The total effective sentence was thus five years and three months' imprisonment. It was ordered that a minimum period of two years and nine months be served before Thompson became eligible for parole. A declaration of 247 days pre-sentence detention was made.

46. A Notice of Application for Leave to Appeal against Sentence dated 5 July 2000 was filed. As amended on 26 February 2001 it contained the following grounds:

2. The learned sentencing judge erred in failing to make due discrimination in sentencing between the applicant and his co-offender.

3. The learned sentencing judge erred in failing to have regard, or sufficient regard, to the assistance provided by the applicant to the authorities.

4. The learned sentencing judge erred in sentencing the applicant for the offence of intentionally causing serious injury, when Count 1 on presentment number C9901125.1/SM alleged a count of intentionally causing injury.

53. Leave to appeal was granted on 15 September 2000, including leave for the foreshadowed new ground 4.

56. The factual background to these offences may be summarised as follows. The appellant and his co-accused, David John Thompson, had lived together for a number of years and were heavily involved in motor cycle racing. Indeed, they had formed a motor cycle racing team. The appellant was the rider and Thompson the Manager. Over the previous two years, Thompson and his family hand financed the racing team to the extent of $50,000 to $70,000. Nonetheless by December 1998 the racing team was in a parlous financial state being unable to obtain sponsorships. As a means by which to rectify this situation the appellant and Thompson discussed the possibility of robbing an Armaguard van. Thompson worked as a security guard with that organisation.

59. On 1 February 1999 the appellant, Freeman, received a telephone call from Thompson who was at work and was told the route of an Armaguard van in which he was to be one of the security guards. It had already been decided on the previous evening that the robbery was to be committed that day. The appellant removed the number plate from a motor cycle which had been borrowed and rode it to Myer Eastland parking it so as to enable a ready get-away. The keys were in the ignition and an unzipped bag between the wheels of the motor cycle contained the appellant's helmet. The hat and glasses that were being worn by the appellant as a disguise could be hidden in the bag when he left the scene. The appellant positioned himself in order to observe the arrival of the Armaguard van and placed a magalite baton torch which had a barrel sufficient for four batteries up the sleeve of his jacket. Thompson and his Armaguard associate, James McMahon, then entered Myer Eastland. It was put on the appellant's plea that he then positioned himself so that, when the two men emerged, he could move up behind McMahon and forcibly push him to the ground causing him to release the bag containing the money. It was contemplated that the appellant would then run off with the bag and escape the scene on the motor cycle, utilising his considerable skills as a motor cycle rider.

62. However, any assertion that this description constitutes the full extent of the appellant's plan is disingenuous. Firstly, it is inconsistent with the plea of the appellant to the offence of intentionally causing injury. Secondly, the suggestion that the grabbing of the bag of money from an armed man and the successful flight with it could be accomplished by way of a simple bag snatching exercise is inherently improbable. Thirdly, since the appellant clearly intended to approach the victim from behind, the torch would have been of no use merely as a threatening weapon. In summary, the successful consummation of this armed robbery depended upon the use of the torch to strike a blow to McMahon's head of sufficient severity to temporarily disable him.

65. In fact, when Thompson led McMahon out of the premises the appellant moved quickly behind him pushing him in the back and, at the same time, striking his head with the heavy torch. McMahon fell face forward to the concrete path hitting his head, and losing consciousness. The appellant grabbed the money bag, ran to where his motor cycle was parked, removed the glasses and the hat he was wearing and placed them, together with the money bag, in the motor cycle bag. Having put on the motor cycle helmet he made his escape by a devious route returning to the house in which he was living with Thompson at 141 Switchback Road, Chirnside Park. The proceeds of the robbery were approximately $82,500.

68. After the offence was committed, the appellant used the proceeds of the robbery to pay for the costs of travelling overseas to pick up motor cycle equipment needed for the racing activities of the team. Flights had been booked to Italy by Thompson for both himself and the appellant on 30 January 1999. On 31 January the appellant confirmed his booking but cancelled that of Thompson. This was the day before the offence. The proceeds of the robbery were also used by the appellant to purchase travellers cheques at a cost in excess of $40,000. He travelled to Italy on 5 February 1999 and returned having imported motor cycle spare parts which were collected from TNT on 18 February. The appellant and Thompson were arrested on 9 March 1999. They each made records of interview on that day admitting their involvement in the offences.

71. The Victim Impact Statement of James McMahon sets out the physical injuries suffered by him and the psychological effects of the incident. Physically, these include substantial loss of hearing in the right ear and partially impaired vision in the left eye, broken teeth, recurring headaches and neck pain. The psychological effects have been diagnosed by a consulting psychologist as constituting chronic post-traumatic stress disorder albeit other factors in Mr McMahon's life have also contributed to his psychological state.

74. In the course of the plea made on the appellant's behalf, emphasis was placed upon his plea of guilty, his demonstrated remorse, his lack of prior convictions, and his prospects of rehabilitation. A number of character witnesses were called and correspondence was tendered attesting to the appellant's prior good character and heart-felt remorse for his actions.

77. Reports and evidence from a clinical psychologist, Mr Jeffrey Cummins, was to the effect that the appellant was a vulnerable person who was suffering from a post-traumatic stress disorder derived from a history of past domestic violence and sexual assault. He opined that the appellant was "riddled with guilt and remorse" and also ventured the view that the appellant was placed under considerable emotional duress by his co-offender, David Thompson, to commit the armed robbery. The latter proposition was rejected by the sentencing Judge and his Honour's finding was not challenged in this Court.

80. Additionally, the court was asked to have regard to the assistance the appellant had provided to the authorities. This was asserted to have manifested itself in several ways. First, in the making of a statement in terms of his record of interview implicating the co-accused, Thompson, and, secondly, in making a statement about another armed robbery, also involving his co-accused and persons named Griggs and Hamill. This statement was apparently directed primarily to the association of these persons.

83. Griggs and Hamill eventually pleaded guilty to an offence and no other prosecution was ultimately proceeded with against Thompson. However, the appellant was prepared to give evidence for the prosecution in both instances and, in relation to the latter matter, actually attended committal proceedings.

86. In this appeal ground 1 was not pursued by the appellant. The abandonment of this ground is not surprising. The robbery was well planned; it was directed against persons whose occupation makes them vulnerable, it involved violence and was carried out in a public place with the risk of the use of firearms by those, (apart from the appellant), whose duty it was to secure the money to be transported. It was an offence that involved a considerable sum of money.

89. It is convenient to deal initially with ground 2 which asserted that the sentencing Judge failed to make a due discrimination in sentencing between the appellant and his co-offender.

92. It should be recognised at the outset that the offence with which the Court is concerned is that of armed robbery. The other offence for which the co-offender Thompson was sentenced had nothing to do with the circumstances of the armed robbery, albeit it was the subject of cumulation and the fixing of Thompson's total effective sentence. It related to an unsuccessful attempt to obtain money by way of an insurance fraud for the purposes of the motor cycle racing endeavours. In my view it provides too tenuous a basis for distinguishing the criminality of the appellant and Thompson.

95. It was argued by Mr. Morrissey, on behalf of the appellant, that the participation of Thompson in this armed robbery involved a breach of trust towards both his employer Armaguard and fellow employees. There is no doubt that is correct. However, against this aggravating factor of Thompson's conduct must be placed the role of the appellant in the armed robbery itself. It was the appellant who introduced actual violence in the perpetration of the offence. Indeed, it was put on behalf of Thompson in the course of his plea that he had impressed upon the appellant that there was to be no violence but a simple bag snatching. The Crown did not allege that Thompson knew the appellant would be armed and assault the victim. The Crown case and the plea was based upon the co-offender Thompson being unaware of the possibility of the appellant being armed with some form of weapon and the possibility of injury occurring. It seems clear from the remarks of the sentencing Judge that this was the basis upon which Thompson was sentenced.

98. Further, it was clear that the sentencing Judge, having heard the evidence of the informant, Detective Senior Constable Craig Darlow, considered the roles of the co-offenders to be essentially complementary regardless of whether Thompson originally conceived the plan to commit the armed robbery.

101. Moreover, it was the appellant who obtained and utilised the proceeds of the armed robbery for his own ends.

104. The antecedents of the co-offenders, which I need not detail, provided no basis for discrimination. These included an early plea of guilty, a lack of relevant prior convictions, co-operation with the investigating authorities, and good prospects of rehabilitation.

107. The factors to which I have hitherto referred, provide no basis whatsoever for the proposition that a distinction was required to be drawn by the sentencing Judge between the appellant and the co-offender.

110. However, in arguing in favour of disparity Mr. Morrissey also relied upon the assistance provided by the appellant to the police both in the instant case and in relation to another armed robbery and the added burden of his period of imprisonment occasioned by that assistance.

113. In relation to the latter matter, it is to be noted that his Honour stated:

"I accept that you are concerned for your welfare in gaol, due to the information you have given to the police in relation to another armed robbery, not the subject of this proceeding, and I take that matter into account."

117. The question of the weight to be given to the provision of information to authorities in the exercise of the sentencing discretion was raised discretely as the third ground of appeal.

120. In arguing ground 3 that the learned trial judge erred in failing to have regard, or sufficient regard, to the assistance provided by the appellant to the authorities, reliance was placed upon R. v. Su[1], where the relevant principles are enunciated. As is made clear it is the genuine cooperation of the person furnishing the assistance which is important, whether or not the information turns out in fact to have been effective. The information must be such as could significantly assist the authorities. Any such discount should not be lost, for example, by reason of the offender not having to give evidence because the person the subject of the information pleads guilty.

123. In his reasons for sentencing the Judge dealt briefly with this aspect of the plea, remarking:

"In relation to the question of any discount for information you provided, I do not consider same to be of relevant import to this sentencing disposition, having regard to its timing and quality and assistance same provided to the police."

"As to the information you provided to the police in relation to another armed robbery, there was no clear evidence provided to the court as to the quality or quantity of such information but I note that Detective Senior Constable Craig Darlow, the informant in this matter, when called to give evidence on your behalf agreed that you provided as much assistance as possible."

129. In relation to this aspect of the matter his Honour, in a report to this Court dated 20 October 2000 wrote:

"As to the ground of appeal, in relation to the discount for co-operation with the police, this was a matter that was canvassed at length in the plea, with the calling of evidence which I considered to be lacking in weight. On reflection on the decisions of the Court of Appeal in R. v. Thomas Childs Evans and R. v. John Tsagaris with judgment being handed down on 29 May 2000, R. v. Su [1997] 1 VR 1, as to the principle that a substantial discount may be given to an informer notwithstanding that the assistance given did not objectively turn out in fact to be effective, consideration of such authorities may well have been relevant to this aspect of the sentence. Regrettably these authorities were not referred to in the course of the plea made on behalf of the appellant."

133. The fact of the provision to the authorities of information which may be regarded as being of some significance entitled the appellant to a sentencing discount in accordance with the principles enunciated in Su's case. The precise worth of that information was never made clear to the sentencing Judge, or for that matter to this Court. Nonetheless it is reasonable to conclude on the material that the information had some potential value to the prosecuting authority. Since the sentencing Judge declined to accord it any weight at all, an error in the exercise of the sentencing discretion has been disclosed. Such a conclusion is also relevant to the second ground of appeal argued, insofar as the provision of information to the authorities by the appellant may be regarded as a basis for some discrimination between him and his co-offender.

136. In relation to ground 4, the Crown concedes that the sentencing Judge was in error in passing sentence on the appellant on a count of intentionally causing serious injury rather than the count of intentionally causing injury which was the amended offence on the presentment which had been filed over the original presentment for the purposes of the plea. In his report the sentencing Judge indicates that this occurred inadvertently and that the same sentence would have passed in any event. Given the nature of the injuries a sentence of one year for an offence carrying a maximum of 10 years is clearly well within the sentencing range. I did not understand Mr. Morrissey to argue otherwise in characterising the sentencing Judge's error as "a technical one".

139. For completeness, I should add that, following the discussion of Su's case, leave was granted to amend the grounds of appeal, to add ground 5. It was in these terms:

"The Learned Sentencing Judge erred in applying the wrong test as to the relevance and significance of the assistance provided by the applicant to the authorities."

The matters raised by this ground have, in my view, been sufficiently canvassed in the discussion of ground 3 and need not be dealt with separately.

144. It follows from what I have said that I would allow the appeal against sentence. I would propose that the appellant be re-sentenced on Count 1, intentionally causing injury to a period of imprisonment of 1 year and, on Count 2, armed robbery, to 4 years and 6 months' imprisonment. I would make 3 months of Count 1 cumulative on Count 2 resulting in a total effective sentence of 4 years 9 months. I would fix a minimum period of 2 years and 3 months before eligibility for parole.

[1] [1997] 1 VR 1 at pp.78-9