R v Izzard [2003] VSCA 152

7. The applicant, who is now aged 23, pleaded guilty in the County Court to one count of attempted robbery (count 1), one count of theft (count 2), one count of attempted armed robbery (count 3), one count of armed robbery (count 4) and one count of recklessly causing injury (count 5). He admitted 34 findings of guilt and 41 previous convictions from 10 court appearances between August 1996 and May 2001. They included convictions for intentionally causing serious injury, armed robbery, burglary, theft, assault with a weapon and public transport offences. After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on 26th June 2002 to 12 months' imprisonment on count 1, six months' imprisonment on count 2, three years' imprisonment on count 3, five years' imprisonment on count 4 and 18 months' imprisonment on count 5. By reason of s.16(1) of the Sentencing Act 1991, that made a total effective sentence of five years' imprisonment, in respect of which his Honour fixed a non-parole period of three-and-a-half years.

10. On 8th November 2002 leave to appeal was refused by a single judge of appeal pursuant to s.582 of the Crimes Act 1958. The applicant has elected to have his application determined by the Court of Appeal. In the meantime the co-offender, to whom reference is made below, has been sentenced and new facts have emerged. The case before us is different from the case before his Honour in November last year.

13. There were originally three grounds of appeal:

"1. The sentence is manifestly excessive . 2. The learned sentencing judge failed to give sufficient weight to the mitigating factors put on my behalf, in particular my early plea of guilty, my youth, my prospects for rehabilitation, and the psychiatric/psychological evidence placed before the Court, including evidence of my level of intelligence. 3. The learned sentencing judge placed improper/undue emphasis on deterrence, both general and specific."

At the outset of the hearing, we granted the applicant leave to add the following additional ground:

"4. The applicant's sentence offends against the principle of parity when compared with the sentence of Jessica Hanson sentenced on 5 May 2003."

19. The facts, as they were presented to the learned judge, may be summarized as follows. At approximately half past two on the afternoon of 29th December 2001 the applicant, then aged 21, and Jessica Hanson, then aged 17, were at the Croydon Railway Station, where 15 year-old Clare O'Keefe was waiting for her father to pick her up. Hanson came up behind O'Keefe and struck her on the back of her head while the applicant kept lookout. O'Keefe said the punch caused her pain and she felt dizzy. Hanson demanded money from the victim, who got up and moved away. She was then hit on the hand by Hanson, who went through her bag. Hanson found nothing worth taking and the offenders ran off. O'Keefe stated that the offending left her "very upset, scared and in tears". In interview the applicant admitted that his purpose at the Croydon Railway Station was "to roll people".

22. The applicant and Hanson then went to a nearby supermarket and stole two serrated-edged knives, each valued at $4. In interview the applicant admitted that their reason for that theft was to equip themselves to commit armed robberies.

25. At about three o'clock the applicant and Hanson boarded a train at Mooroolbark. Steven Meagher, Luke Fairbank and Gavin Evertson, aged 13, 16 and 17 respectively, were already on the train. Hanson spoke to Meagher, who was sitting near her, and asked him what he was staring at. He said he was looking out the window, but she accused him of staring at her and demanded an apology, which he gave. She professed not to be satisfied with that apology and told him to get down on all fours and beg her forgiveness. He refused to do so. The applicant then walked over and crouched down beside the boy, who could see that he had a knife. He said to him, "Give me your wallet." Meagher was trying to get that out of his bag when Hanson approached Evertson and demanded his wallet and mobile phone. When Evertson refused, Hanson punched him. In the end the applicant did not secure Meagher's wallet, but, at some point in the exchange, Evertson did give Hanson his mobile phone.

28. Evertson then ran down to the back of the carriage to get away from his assailants, both of whom gave chase. He tried to evade them by jumping some seats, but the applicant blocked his path. Hanson came up behind Evertson, who stated that he then felt a sharp pain in his lower back. He eventually pushed past both offenders, rejoined Fairbank and escaped into another carriage. He had sustained what turned out to be a superficial wound to the lower left side of his back. His Honour accepted that it was Hanson who had stabbed him.

31. One of the boys contacted the police by mobile telephone and soon afterwards the applicant and Hanson were arrested at Croydon Railway Station. A 20 centimetre long kitchen knife was removed from Hanson's waistband and a similar weapon retrieved from the applicant's pocket. The applicant was immediately co-operative with police. He was interviewed that day and made full admissions. He pleaded guilty at the committal on 28th March 2002.

34. Hanson eventually pleaded guilty, after the applicant was sentenced, to a presentment matching his except that it omitted count 5. At her committal, on 13th August 2002, Evertson was called to give evidence. He said that he was affected by alcohol at the time and was not sure who had stabbed him. He also said that, while he was in the railway carriage, he saw only one knife and it was carried by the applicant. That contradicted his contemporaneous statement to the police. It emerged that, some time after the offending, a chance meeting between Hanson and Evertson had led to their striking up a friendship and ultimately a relationship in which they lived together for a few months from April 2002.

37. Hanson was sentenced to 12 months' imprisonment on count 4, wholly suspended for two years. On counts 1, 2 and 3 she was released, with conviction, upon a community based order for a period of two years. There was a special condition that she undergo assessment and treatment for drug and alcohol addiction and that she perform 300 hours of unpaid community work.

40. The result was that, notwithstanding his earlier plea of guilty, the sentence imposed on the applicant on count 4 was five times the length of the sentence imposed on Hanson and her sentence was wholly suspended. Moreover, she was given a community based order in respect of counts 1, 2 and 3, when he was given sentences of 12 months', six months' and three years' imprisonment respectively. Notwithstanding the difference in their ages and antecedents[1], the applicant is entitled to feel a sense of grievance. It is a justified sense of grievance which, in my opinion, would be shared by an objective observer.[2] Ground 4 is therefore made out. That re-opens the sentencing discretion and obliges us to re-sentence the applicant. It is unnecessary formally to decide the other grounds.

43. If one knew only the circumstances of the offences and the applicant's record, one might conclude that a total effective sentence of five years' imprisonment was justified. (It is a very different matter to say that a sentence of five years' imprisonment on count 4 alone was justified.) The maximum custodial penalties were ten years' imprisonment (counts 1 and 2), 20 years' imprisonment (count 3), 25 years' imprisonment (count 4) and five years' imprisonment (count 5). If one did not know the applicant's medical condition, one would consider the offence the subject of count 3 contemptible, given the respective ages of the applicant and the victim, and general deterrence an important consideration in relation to all five offences.

46. The applicant is, however, a chronic schizophrenic and intellectually challenged. In a psychiatric report dated 19th June 2002 Dr Barry-Walsh opined that there was little, if any, direct relationship between the applicant's illness and the instant offending, but he acknowledged that the applicant was "a significantly damaged man". Not only did he have a major psychiatric illness, but also, the doctor continued, he was intellectually limited, had poor literacy skills and seemed to be vulnerable to exploitation by others. There were also before the judge a psychiatric report and a psychological report obtained in 1998. I accept Mr Thomas's submission that, although the applicant's schizophrenia may have been controlled at the time, it affects everything he does.

49. Serious psychiatric illness impacts, in a variety of ways, on the severity of sentence and the relevance of general deterrence. In a case such as this the latter is not excluded but is to be sensibly moderated.[3] Mental illness is not, however, solely a mitigatory factor. It may mean that the offender, whilst deserving of compassion, is also a greater danger to the community. That was pointed out by Gleeson, C.J. in R. v. Engert[4] and, more recently, by Batt, J.A. in R. v. Bux.[5] It is a factor to be borne in mind in the present case and no doubt one of the reasons why Mr Thomas submitted that there should be eligibility for a longer than usual period of supervision on parole.

52. We were provided with the sentencing remarks of the learned judge who sentenced Hanson. I can well understand why her Honour decided not to impose an immediate custodial sentence and I am conscious that we did not hear the plea, but it is hard to resist the conclusion that Hanson's criminality was not adequately reflected in the sentences that she received.

55. That being so, I have directed myself in accordance with the following passage from the judgment of Chernov, J.A., with whom Winneke, P. and Buchanan, J.A. agreed, in R. v. Wilson[6]:

"Another approach adopted by the courts in dealing with the injustice engendered by the discrepancy in the sentences where the second sentence is regarded as being excessively low, is not to seek to match the applicant's sentence to the lenient one, but to resentence the applicant and, in the course of constructing the new sentence, have regard to the sentence that was imposed on the co-offender, thereby taking it into account in the broad sense in the course of exercising the sentencing discretion: see Reardon and Kucharski. In the latter case, Hayne JA followed the course suggested in Pecora, namely, in the context of resentencing the applicant, regard should be had to the sentence that was imposed on the co-offenders, but giving it only such weight as was appropriate in all the circumstances." (Footnotes omitted.)

The Court applied that approach in re-sentencing Wilson.

60. Making due allowance for the applicant's youth, mental illness and intellectual deficit and the sentences imposed on Hanson, I propose that he be re-sentenced as follows;

I would direct that six months of the sentence imposed on count 1 and nine months of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 3, making a total effective sentence of three years and nine months' imprisonment.

69. The non-parole period is of particular importance in a case like this. The minimum term that justice requires the applicant to serve is less than would otherwise be the case, but a substantial period of supervision is desirable. The applicant has already served almost one year and nine months' imprisonment. It is, I think, undesirable to express a view as to what the non-parole period might have been in different circumstances. I propose that a non-parole period of one year and nine months be fixed.

72. Before parting with this case, I should refer to a matter of sentencing practice. It arises from the learned judge's having imposed five years' imprisonment on count 4, allowing all the other sentences to be served concurrently, instead of a moderate sentence on what his Honour regarded as the most serious count, lesser sentences on the other counts and an appropriate measure of cumulation. The latter course is not always appropriate, but it would have been here. There were, for example, four victims. In R. v. O'Rourke[7] this Court directed cumulation where there was but one victim and a series of assaults over a period of only 20 minutes.[8]

75. In R. v. Mai[9] the appellant was sentenced to terms of imprisonment ranging from six months to five years, with a total effective sentence of five years' imprisonment. Charles, J.A. said[10] that it was unfortunate that the judge took that course. A measure of cumulation was plainly open and would have been appropriate. By imposing the total effective sentence on one count his Honour had made the disposition vulnerable on appeal. In R. v. Bain[11] there was a similar pattern. I referred[12] to the observations of Charles, J.A. in the earlier case and pointed out that failure to moderate and cumulate had made the sentence vulnerable in a way in which it need not have been.

78. In R. v. McCorriston[13], in a judgment in which Winneke, P. and Buchanan, J.A.

specifically agreed[14], I said[15]:

"Sentencing judges should be allowed great latitude in tailoring an appropriate total effective sentence, but there are two errors or dangers that it is easy to fall into. One is to fail to register the seriousness of one or more of the offences, as for example by imposing a series of very short sentences and directing that they all be served cumulatively. Another is to impose a particularly heavy sentence on one count and to allow the sentences imposed on all the others to be served concurrently despite the fact that some cumulation would be justified. Very often it is not, as s.16(1) of the Sentencing Act 1991 and common sense both recognise. But the combined effect of cases such as R. v. Newman and Turnbull and Pearce v. R. is that sentencing judges are sometimes well advised to moderate the sentences they impose on each count and to direct a measure of total, or more often partial, cumulation. That is especially so when offences are committed on separate occasions or against different victims, but those are not the only examples. Failure to moderate and cumulate in an appropriate case is apt to make a sentence unnecessarily (and unmeritoriously) vulnerable to appellate intervention." (Footnotes omitted.)

A moderate sentence may, of course, be lengthy. Moderation takes its content from the circumstances and each individual sentence should still be appropriate for the relevant count.

84. There are at least three reasons why, within the limits of common sense, judges are well advised to moderate and cumulate in appropriate cases. First, moderation is a virtue in itself. Secondly, other victims are not left to feel that the offences committed against them are "meaningless statistics"[16]. Thirdly, a sentence structured that way is less vulnerable on appeal. Attention is focussed on the merits and the discretion is not reopened simply because the total effective sentence, imposed on one count, was manifestly excessive for the offence the subject of that count considered on its own.

89. I agree that this application should be allowed; that the sentence imposed in

the Court below be set aside; and that the applicant be re-sentenced as proposed by Callaway, J.A. I do so for the reasons advanced by him.

[1] Hanson admitted one previous appearance in the Children's Court on 14th November 2001 on one charge of theft and two charges of assault. The judge who sentenced her said that she received an adjourned bond in the sum of $100 to be of good behaviour and breached that bond by committing the instant offences six weeks later.

[2] Lowe v. R. [1984] HCA 51; (1984) 154 C.L.R. 505; R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402; Postiglione v. R. [1997] HCA 26; (1997) 189 C.L.R. 295.

[3] See, among other authorities, R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398 at 400; R. v. Yaldiz [1998] 2 V.R. 376 at 381 and 383; R. v. Tramontano [2002] NTCCA 4; (2002) 131 A.Crim.R. 1 at [56] and R. v. Bux [2002] VSCA 126; (2002) 132 A.Crim.R. 395 at [33]- [40].

[4] (1995) 84 A.Crim.R. 67 at 68 and 70-71.

[6] [2000] VSCA 202; (2000) 116 A.Crim.R. 90 at [22].

[7] [1997] 1 V.R. 246.

[8] The critical passage is at 253. The orders are at 255-256.

[9] [2000] VSCA 184.

[11] [2000] VSCA 199.

[13] [2000] VSCA 200.

[16] Compare Director of Public Prosecutions v. Solomon [2002] VSCA 106 at [19] per Winneke, P.