Criminal law - Sentence - Applicant retained in custody for "other offences" in respect of which he was ultimately acquitted - "Period wasted" not capable of being declared pursuant to s.18 Sentencing Act - Can be "generally" taken into account if sentencing discretion otherwise re-opened.
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1 On 17 September 2004 the applicant pleaded guilty in the County Court to one count of armed robbery in company, the crime having been committed on 30 November 2003. Briefly, the facts of the robbery were as follows. The applicant, in company with one Khoklov, approached the victim as she got into her car in a car park in Drysdale Street, Malvern. The victim was prevented from closing her car door. The applicant produced a knife. He and Khoklov then took the victim's handbag and left. Other people responded to cries of distress from the victim and the police were called. The applicant and Khoklov were found thereafter on the roof of a nearby church building and the handbag and knife were also found there. In a victim impact statement, the victim said that her life had been threatened and she thought she was going to be stabbed. For some time afterwards, she had great difficulty in sleeping and it was some six months before she felt that she had control of her emotions again. Even now, she says, it is impossible to erase the incident completely from her memory.
2 On 5 October 2004, the judge sentenced the applicant to a term of three years' imprisonment, with a non-parole period of 15 months. The applicant had no prior convictions and was 29 years old at the time of the offending. The sentencing judge rejected the submission that any sentence imposed should be partly suspended; however, she regarded a "relatively short non-parole period" , as she described it, as appropriate as an aid to the applicant's rehabilitation.
3 The sentencing judge, in her reasons for sentence, traced the history of the applicant's life in Greece, Canada and Australia, noting that he was an intelligent man but unambitious in that regard; and that his personal history was studded with restlessness, moving from Australia to Greece, and back again, thence to Canada and back to Australia. He apparently married in Toronto, but that had terminated in 2002, when he returned to Melbourne. He was drinking and gambling heavily; and was also on prescribed antidepressant medication. It would seem that he was a poly-substance abuser. For some years he had worked in various restaurants in different places; although at the time when the crime was committed he was unemployed. Shortly before the offending, he had again become betrothed, but that too was broken a few days before the robbery. On the night before he committed this crime, he had been involved in two car accidents - apparently they were caused by the influence of his prescribed medication.
4 This background was, during the plea, relied upon by the applicant's counsel as material which both explained and moderated the offending. Consistently, it was put, he had pleaded guilty at an early stage and expressed remorse. Emphasis had been laid, at the plea, on the applicant's drug habits and his treatment by Dr Lloyd Jones at the Delmont Private Hospital since April 2003. Her Honour noted that Dr Lloyd Jones had reported "patchy progress"; and that the applicant had not seen the doctor since "the end of June 2004"; leading her Honour to the view that rehabilitation "is by no means assured".
5 For all this, the sentence which her Honour imposed is a very lenient sentence for a crime as serious as this one was. The victim was vulnerable as she returned to her car in a covered car park in Malvern. As she entered that car she was waylaid by the applicant and his co-accused. The applicant had with him a large knife; wanted the car keys and the bag. The entire affair - as no doubt intended by the applicant and Khoklov - terrified the victim. Khoklov, who stood for sentence some six months after the applicant, was sentenced to the same period as was the applicant; but I must say that I wholly agree with the very experienced judge who sentenced Khoklov when he said that the sentence imposed on this applicant was a lenient one.
6 Mr Carter - who appeared for the applicant in this Court - contended that the judge's sentence was adversely infected by two matters of significance which led to the imposition of a sentence which was claimed to be excessive. The first point arose from events which occurred after this robbery. Two days after the crime, the applicant was released on bail. Then it seems that on 28 June 2004 he was taken back into custody in respect of further alleged offences. He remained in custody for about another three months before he was sentenced for the armed robbery. Subsequently he was acquitted of the charges in respect of the events of 28 June 2004. It was submitted by Mr Carter that this Court should reduce the sentence imposed for the armed robbery on account of the fact that the prisoner had been in gaol for some three months awaiting trial for offences which the Crown in fact had failed to prove were committed. Unless the time spent was capable of being declared as pre-sentence detention in respect of the armed robbery offence, the time spent and wasted could only be taken into account generally by this Court in determining the outcome of this application. As Callaway, J.A. said in Kotzmann:[1]
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"There can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which to draw in relation to subsequent offences unconnected with the reason for custody. But sentencing involves a very wide discretion ... "
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The same logic applies in this case. There can be no arithmetic deduction from the sentence of days spent in custody for the other offences; unless s.18 of the Sentencing Act were to apply. But it cannot apply in this case, so we were informed, because the bail granted after the robbery was not revoked. That appears to have been no fault of the applicant. The prosecutor informed us that it is the Crown's view that it would be appropriate that some adjustment to the sentence be made for the unwarranted time spent in custody.
7 The second ground asserts that the sentencing judge's discretion has miscarried because she misconstrued the applicant's prospects of rehabilitation by saying that the applicant had:
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1 "last [seen] Dr Lloyd Jones three months ago and you appear not to have been following up on drug treatment as you have not attended his rooms for methadone since the end of June."
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This was the basis upon which her Honour was able to remark that the applicant's rehabilitation "is by no means assured as yet". This was, I am satisfied, an error which was made by the judge because, as I have indicated, the applicant was, at the time remarked upon by the judge, in custody for the subsequent offences. It is that error which would be capable of re-opening the sentencing discretion, and does so, but the question in my mind arises as to whether any different sentence should be passed. Having regard to the attitude expressed on behalf of the Director, I think it would be appropriate to make some adjustment to take account of the time spent in prison, which - as we now know - was unwarranted for reasons not the fault of the applicant. I would therefore allow the appeal, and in lieu of the sentence passed by the judge I would impose a sentence of two years and ten months and direct that he serve a period of 13 months before becoming eligible for parole. It should not be thought that the view which I have taken is otherwise than wholly referable to the peculiar facts of this case; nor should it be thought that any form of precedent is being set for the conclusion which I have reached, which has been wholly based on the peculiar circumstances of this application.
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8 I agree, and in particular I agree with the concluding remarks of the Acting Chief Justice.
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9 I agree that ground 2, relating to the applicant's not having attended Dr Lloyd Jones's rooms for methadone since the end of June, should be upheld. The learned sentencing judge mistook the facts and that re-opens the discretion.[2] As Mrs Pullen conceded, the roughly three months that the applicant spent in custody for offences of which he was later acquitted should be taken into account by this Court on re-sentencing as a general sentencing consideration. I would re-sentence the applicant to two years and nine months' imprisonment. It is not obvious to me that any reduction in the non-parole period should be made. As mine is a dissenting opinion, there is no need to say more.
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10 The formal order of the Court is as follows:
The application for leave to appeal is granted. The appeal is allowed. In lieu of the sentence imposed by the sentencing judge, this Court imposes the following sentence, namely, that the appellant is sentenced to a term of two years and ten months and ordered to serve a period of 13 months before becoming eligible for parole.
The Court declares that the appellant has served 250 days by way of pre-sentence detention and we direct that that declaration and its details be entered in the records of the Court.