R v Katelis [2008] VSCA 239

Court of Appeal (Vic)|2008-12-04|Before: VINCENT, NETTLE and KELLAM JJA

CRIMINAL LAW - Sentencing - Robbery - Sentence of 4 years' imprisonment with a minimum period of 2 years - Sentencing judge fell into material error - Incorrect maximum penalty - Factual errors - Crown concession that intervention necessary - Appeal allowed - Appellant re-sentenced.

Mr S Ward, Acting Solicitor for Public Prosecutions

2 The appellant had been found guilty, on 19 April 2007, by the jury empanelled on his trial for this offence.[2] He had 67 prior convictions from 20 court appearances, including burglary and theft in 1988, the possession of a firearm, possession of a drug of dependence, being an unlicensed driver and giving a false name and address in 1989, being found on premises without lawful excuse and using a drug of dependence in 1991, and others of a similar nature in the period until 2004.

3 After hearing a plea in mitigation of penalty, he was sentenced to 4 years' imprisonment with a minimum period of 2 years to be served before he could be released on parole.

4 Leave was granted by a judge of this Court to appeal against this sentence as it was apparent that the sentencing judge had fallen into material error in more than one respect. In particular, his Honour had imposed sentence by reference to the wrong maximum penalty and had made factual errors in relation to the appellant's background which may well have assumed significance in his determination of an appropriate sentence.

5 When the matter came before us, counsel for the Crown, accepted that in these circumstances, the intervention of the Court was required and the appellant re-sentenced. Accordingly, there is no need to address the specific grounds of appeal upon which reliance was intended to be placed.

6 On 3 January 2005, Mr Michael Fitzgerald had a successful afternoon playing the poker machines at the Junction Hotel, Oakleigh, and had the good fortune to win approximately $4,000.00, a little over half of which he placed in his wallet. The appellant, who had been at the hotel at that time, noted his success and, when Mr Fitzgerald left at about 3:40pm, he followed him as he walked to the Oakleigh Railway Station. As Mr Fitzgerald proceeded down a ramp leading towards the station, the appellant grabbed him around the throat with one hand, choking him, pushing him to the ground, and demanding his wallet. Mr Fitzgerald complied, but requested a small sum to enable him to travel home. The applicant removed about $2,550.00 from the wallet, leaving approximately $150.00. He then left.

7 The appellant's presence was recorded on security cameras inside and outside the hotel and by others at the Railway Station. He could be seen following Mr Fitzgerald and approaching him before the robbery as well as leaving the scene.

8 Ms Gayle Van Hoorn, a staff member at the Hotel, who was present at the time Mr Fitzgerald was playing the machines, observed unusual behaviour of the appellant towards him. She saw Mr Fitzgerald leave the hotel and the appellant follow him. She knew the applicant by the name of 'George' and, on checking hotel records, ascertained that he was known as 'George Kats'.

9 The appellant was arrested on 7 January 2005 after the police conducted a search of his home and $290.00 cash was found.

10 Mr Fitzgerald sustained bruising around his throat and chest as a consequence of the attack upon him and, for a period, experienced difficulty breathing and swallowing. Unsurprisingly, in his victim impact statement, he also reported an ongoing psychological reaction to what had happened.

11 The appellant was aged 38 years at the time of sentencing and worked as a self-employed plumber and gas fitter. He had lived with his parents virtually all his life in what appears to have been a stable environment. However he has suffered from a serious drug problem from his teenage years, such that the sentencing judge found that 'although you fight against your addiction, whenever you are faced with adverse circumstances you revert to drug use'. His Honour stated that -

In 2005 while working as a plumber for a builder, the builder defaulted on a contract and failed to pay you the sum of some $14,000 or $15,000 and as a consequence you nearly went bankrupt. Following that loss you became depressed and recommenced cannabis use.[3]

...

Your counsel, also tendered a report from Mr Bernard Healey dated 28 April of 2007. In that detailed report Mr Healey recounted some of the recent history of your drug addiction. He also said he had assessed you on two prior occasions in 1995 and 1999 and he noted that you had previously been placed on a combined custody treatment order in late 2000. He said that you appeared to have sought solace in drugs as a consequence of coming under pressure through the default of the builder in paying you. As a consequence of that you returned to using amphetamines and then ice in 2004.

12 Whilst this history could go some way to explaining the conduct of the appellant on this occasion and tend to evoke some sympathy for him as a person trapped in the web of addiction, it cannot detract from the seriousness of the conduct in which he engaged or be seen to reduce his culpability for it to any substantial extent. Accepting that his reasoning processes may have been affected not only by any drugs he may have taken at around the time but also by the destructive effect that his long term addiction almost certainly had upon him generally and the values by which he lived, he was undoubtedly fully conscious of the criminality of his behaviour and chose to resolve his personal and financial problems by the commission of an extremely serious and, to some extent at least, premeditated crime. Specific and general deterrence both assume significance as sentencing considerations in the circumstances.

13 It is also important to bear in mind that, as is often the case, the financial loss incurred by the victim has been one of its lesser consequences to him. With respect to the former, his victim impact statement records[4]

The financial loss I incurred was $2,500 which I had won at the pokies. The winning I was going to buy food and pay some of my bills off as well as take my girlfriend at the time away for a special trip for her birthday.

The trauma I suffered as per the crime was that of feeling scared and sense of not being able to go back there again. I also have the thought of what could have happened if it haven't (sic) have happened

...

The way my life has changed as I have friends in that area and I can no longer go and visit them. As I have said above going any where near them I start to get nervous because of the fear it may happen again to me or someone else.

14 Once these matters were taken into account and given the behaviour itself and the appellant's lengthy criminal history which contains a number of convictions for offences of dishonesty and assault, the proper exercise of sentencing discretion required the imposition of a substantial term of imprisonment.

15 The Court therefore determined that the following orders should be made:

The sentence on the count of robbery is set aside and in lieu thereof the appellant is sentenced to imprisonment for a term of 3 years and 6 months. In respect of which a non-parole period of 1 year and 6 months is fixed.

It is declared that 591 days be reckoned as having been served under this sentence, and it is directed that this declaration and its details be entered in the Court record.[5]

[1] Count 1 on Presentment No: T00046635.1.

[2] He pleaded guilty to count 2, theft on presentment T00046635.1 and at the subsequent plea hearing on 8 June 2007 a second presentment, T00046635.2 was filed and the applicant pleaded guilty to one count of a prohibited person possessing an unregistered firearm, and one count of a possession of a drug of dependence, cannabis. Fines were imposed for those offences.

[3] The problem and the relapse occurred, it appears, at the end of 2004 shortly prior to the commission of the offence and not, as his Honour stated, in 2005.

[4] We refer, in this context, to refer to views expressed by this Court in relation to victim impact statements in DPP v DJK [2003] VSCA 109.

[5] There was an error in the calculation of period to be reckoned as pre-sentence detention in the earlier hearing and to which attention was required on a Renzella basis (R v Renzella [1997] 2 VR 88) before us which has been taken into account.

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