R v Kittikhoun [2004] VSCA 194

5. On 6 October 2003 the appellant filed a notice of application for leave to appeal against sentence that contained two grounds. The grounds were amended by leave of the Registrar, given on 14 April 2004, by the addition of two further grounds. On 4 June 2004 a judge of this Court granted the appellant leave to appeal against the sentence and on 7 June 2004 the appellant added a further ground of appeal pursuant to leave of the Registrar. Before dealing with the grounds that were argued by Mr Holdenson for the appellant, I shall set out briefly the circumstances of the appellant's offending conduct, which took place over a period of approximately two months, from 25 September 2001 to 22 November 2001.

8. The appellant and his principal co-offender, Sana Marvasti, who was then aged 19 years, committed the offences at 15 retail outlets, stealing over $27,000 in cash as well as a large quantity of cigarettes. On each occasion the pair was assisted by a person driving a "getaway" vehicle. The role of the driver was performed variously by four men and one woman over the period, each of whom was later charged and pleaded guilty to his or her role in the commission of the offences. The robberies were committed late at night against "soft targets" - service stations, convenience stores and, on one occasion, a restaurant - to which the public had easy access, but where the premises and their contents were under the control of persons who were vulnerable to being robbed. In general, the modus operandi of the appellant and his co-offenders was as follows. The appellant and Marvasti entered the premises wearing balaclavas, while the driver waited outside in a getaway vehicle. Marvasti carried a sawn-off shotgun that he pointed at the store attendants - on one occasion pushing the barrel into the victim's neck - threatening them in a loud voice and demanding cash from the store's registers and safe. The offenders then filled their bags with cash takings and cigarettes and escaped in their getaway car. The appellant told the police in his record of interview that, although the shotgun was not loaded on those occasions, he carried the cartridges for it in his pocket.

11. On 8 October 2001 the appellant and his co-offenders were thwarted in their attempt to rob a service station at Sunshine. The doors to the store were locked when they arrived. Marvasti hit the glass doors with the sawn-off shotgun and yelled at the store attendant to unlock the doors. The attendant, however, refused and hid behind the counter. In the result, the appellant, Marvasti and their driver, on that occasion Elizabeth Peppas, left. Half an hour later, they robbed a service station at Epping. On 9 October 2001 the appellant and Marvasti falsely imprisoned two people during the commission of an armed robbery of the Bundoora "Smorgies" Restaurant. Dimitria Bezoglou, who worked at the restaurant, and her boyfriend, Daniel Bowen, were intercepted by the offenders when they were leaving the premises after Bezoglou had closed the restaurant for the night. The pair, and the restaurant's cleaner, were ordered by the offenders back inside the restaurant. Bezoglou was then told to open the safe. She complied and took from it $2,000, which she handed to Marvasti. Her handbag, containing a mobile telephone and $190 in cash, was also taken from her by the offenders. The three victims were then ushered back outside the restaurant and ordered to lie on the ground until the men were gone. Marvasti, in the presence of the appellant, told them that they would be shot if they did not comply.

14. The appellant and his various co-offenders were arrested on 23 November 2001. Upon his arrest, Marvasti admitted his role in the robberies and undertook to help the police in their investigation of the crimes that involved, inter alia, the appellant. He signed a statement to that effect on 15 December 2001 and pleaded guilty on 23 April 2002. In accordance with his undertaking, Marvasti gave evidence against the appellant at his committal. Furthermore, at least one of the drivers of the getaway cars at the hold-ups also assisted the police in relation to their investigation of the appellant's participation in the robberies. Thus, by the time the appellant pleaded guilty on 3 September 2003, the police had a solid case against him.

17. It is convenient at this point to set out briefly the appellant's personal circumstances. It is apparent that he suffered significant hardship during his childhood and his later years, as was accepted by the learned sentencing judge. He was born in Laos on 4 November 1976 and was, therefore, 24 years of age during the offending. The appellant's family had been an upper middle class family before the Communist takeover of the country, but then had its assets frozen. In the result, the family was plunged into poverty and both the appellant's parents were forced to work long hours in order to feed their three young children. This left the appellant in the care of his two older siblings when he was still an infant. In late 1979, the appellant, his mother and two siblings escaped to Thailand. They were placed in a refugee camp where conditions were not markedly better than in Laos and the appellant nearly died of malnutrition. Approximately one year later, the family was accepted by Australia as refugees on humanitarian grounds. They arrived in this country in late 1980. Although the appellant went to school here he did not complete his studies because his girlfriend fell pregnant and he felt that he needed to find work in order to support her and their coming child. The couple married in 1998, when they were both 19 years of age, and later had another child. The appellant's two children are now aged 6 and 8 and are in the custody of their mother. The appellant and his wife separated in mid-2000 after he discovered that she was seeing other men.

20. Following his separation from his wife, the appellant began to suffer from depression and in 2001 developed a gambling habit. At this stage, he was unemployed despite his previously sound employment history. The appellant started to gamble every day and pawned many of his possessions in order to fund his habit. In his report dated 10 September 2003, Mr Cummins diagnosed the appellant as having a pathological gambling disorder. Notably, however, Mr Cummins gave evidence that the appellant had "undergone considerable rehabilitation ... and to his credit it appears that rehabilitation has been essentially, if not wholly, self-initiated." It is plain enough from the learned judge's sentencing remarks that he accepted the thrust of Mr Cummins's report and evidence and, in particular, that the appellant was "unlikely to offend again" and had good prospects for rehabilitation. But his Honour concluded that "those considerations ... are subservient to the considerations relating to deterrence". I will come back to the question of the appellant's prospects of rehabilitation and the importance of the principle of general deterrence.

23. I now turn to consider the grounds of appeal and the arguments put by Mr Holdenson in support of them.

27. It is convenient to consider together grounds 3, 5 and 1. Under cover of ground 3 it was put that the learned sentencing judge failed to accord any, or sufficient, weight to the appellant's plea of guilty. It was said that the period of the total effective sentence, the non-parole period and the individual sentences demonstrate that insufficient weight was given to this significant mitigating factor. Mr Holdenson submitted that the appellant's pleas of guilty "have simply been undervalued" - as is demonstrated by the fact that the sentences do not enable one to discern the required sentencing discount. In that context counsel referred to what this Court has said in R. v. Ly[1] and R. v. Taing[2]. But the present case differs relevantly, in my view, from the other cases. The plea here was made relatively late and the Crown case against the appellant was, at the very least, sound. In my view, as I will explain, the sentences do not suffer from the defect contended for by the appellant under this ground.

30. Ground 5 alleges that his Honour failed to accord any or any sufficient weight to the appellant's prospects of rehabilitation. It was said that, although the judge recognised in the sentencing remarks that the appellant's "prospect of rehabilitation [were] good", he did not give effect to this finding, as is evidenced, it was said, by the length of the total effective sentence and the non-parole period. Counsel argued that his Honour simply failed to impose a sentence in accordance with his finding as to the appellant's prospects of rehabilitation. But, for reasons I give later, this argument should also be rejected.

33. Under ground 1 it was claimed that each of the total effective sentence and the non-parole period is manifestly excessive, being disproportionate to the appellant's offending and well outside the range of sentences properly available.

36. It should be said at the outset that if the learned judge had not accorded any weight to the mitigating factors referred to in grounds 3 and 5, this would have amounted to specific error that would have vitiated the sentencing discretion. But, in my view, it is plain from the sentencing remarks that his Honour took these matters into account for sentencing purposes. Thus, for example, his Honour recognised, in terms, that, although the Crown case against the appellant was relatively strong, his plea of guilty, even though made late, saved the State the expense of prosecuting a substantial trial and that he was entitled to a sentencing discount by reason of that. His Honour also recognised the hardship that was experienced by the appellant, particularly during his early years, and that his prospects of rehabilitation were good. Furthermore, as I have said, his Honour recognised and took into account that the appellant did not have any relevant prior convictions.

39. The real question is whether his Honour gave insufficient weight to the relevant mitigating factors in the sentencing disposition, as is contended for on the appellant's behalf. I consider that, fairly read, the sentencing remarks do not show that his Honour made the undervaluation contended for. Where, as here, the sentencing remarks do not, on their face, demonstrate failure to accord due weight to mitigating factors, it is ordinarily difficult for an appellant to make out a case of sentencing error of the kind alleged here without first showing that the sentence is manifestly excessive. In the circumstances, I turn to consider whether the impugned sentences suffer from such a defect, thus reflecting the judge's failure to give due weight to the mitigating circumstances as was contended for by counsel. The real question for present purposes is, therefore, whether the sentence is within the range of sentences properly available to his Honour.

42. In sentencing the appellant his Honour was required to fix a sentence that reflected the gravity of the offence and of the offending conduct, taking into account matters personal to him, including mitigating factors, and the applicable sentencing principles. That his Honour did this, I think, is apparent from his sentencing remarks. The offences that were committed by the appellant were of a very serious nature, as is reflected in the length of the maximum custodial sentence that was prescribed by Parliament in respect of them and to which reference has already been made. Importantly, there were a number of aggravating aspects of the appellant's offending, which was carried out continuously over a period of two months. The robberies were obviously planned and committed during the night in a cowardly and brutal manner on "soft targets", involving victims who were in vulnerable circumstances. The sawn-off shotgun that was used in the hold-ups and the threats that were made to the victims were intended to terrorise them into submission, and did so. The terror inflicted on the victims at the Bundoora restaurant was particularly disturbing. The fact that the appellant did not hold the gun during the robberies is of no relevant assistance to him, bearing in mind that he acted in concert with Marvasti in robbing their victims. I note also that once the appellant and his co-offender decided to commit a robbery, they were not easily deterred. Thus, their failure to rob the petrol station in Sunshine merely postponed the commission of an offence; they drove to Epping, as I have said, and there robbed a service station, holding up the staff at gunpoint.

45. Given the nature of the offences and of the appellant's offending conduct, the principle of general deterrence assumes particular significance for sentencing purposes, even if one assumes that specific deterrence is to be regarded as of little relevance in light of the appellant's prospects of rehabilitation. It is true that there are significant mitigating circumstances that operate in the appellant's favour, to which reference has already been made, but as this Court has said in the context of other cases where armed robberies have been perpetrated against soft targets, "because of the prevalence and the seriousness of offences of this nature... the mitigating and other personal circumstances of the offender must, to a degree, give way to the primary purpose of punishment of such offences, namely, deterrence".[3] As Buchanan, J.A. (with whom Callaway, J.A. and Coldrey, A.J.A. agreed) observed in R. v. Swingler[4], "the crime of armed robbery perpetrated against defenceless, isolated persons late at night is a serious offence and calls for condign punishment in order to deter others". His Honour also cited with approval in that case the following observations of Winneke, P. in R. v. Orlikowski[5], made in the context of the attempted armed robbery of a service station by a youth wielding a knife:

"One has to be careful, I think, in entertaining applications against sentences of this sort, not to allow too readily the personal circumstances of the offender to mask the features of this crime which required the sentencing judge to properly regard principles of general and specific deterrence as important features in the exercise of the sentencing discretion. The crime is one which is perpetrated upon usually defenceless members of the community whilst those persons are going about their business, often in circumstances of isolation. The crime is one which instils terror into its victims ... "

I consider that these observations apply to the facts of the present case. That is not to say that the significant mitigating factors that operate here are to be minimised or that the sentencing disposition should be determined otherwise than in the context of the facts and circumstances applicable to the particular case.[6] In the end, his Honour had to balance the mitigating factors against the aggravating circumstances to which I have referred and determine, as I have said, a proper sentence, having due regard to the principles of general deterrence and the requirement to impose just punishment for these offences.

50. It is trite that the question whether the impugned sentences are manifestly excessive does not admit of much elaboration. Once the relevant facts and circumstances are identified the sentence is, on its face, either unduly excessive - plainly wrong - or it is not. It must not be forgotten that the burden, or the duty, of sentencing the offender has been placed on the shoulders of the sentencing judge and not this Court. We can only interfere with a sentence if a specific error on the part of the sentencing judge has been demonstrated such as to vitiate his or her sentencing discretion or the sentence is plainly wrong.

53. I consider that in this case each individual sentence is within the available range. Given the circumstances, a sentence of four years' imprisonment in relation to each armed robbery (and two years in respect of each attempted armed robbery) is plainly not excessive. If anything, in the context of this case, such sentences are at the lower end of the scale. Similarly, I consider that the cumulation of six months of each of the relevant sentences upon count 1 is clearly within the range, given the circumstances of this case. In relation to the non-parole period, it was said by counsel, with some force, that given his Honour's finding as to the appellant's prospects of rehabilitation, more particularly that he is unlikely to re-offend, the non-parole period is manifestly excessive. I consider, however, that, notwithstanding his Honour's finding to this effect, the non-parole period is not of such a magnitude as to vitiate his Honour's sentencing discretion.

56. For these reasons, I consider that grounds 1, 3 and 5 should fail.

60. Under cover of ground 4 the appellant contended that the total effective sentence breaches the principle of totality. It was said that his Honour failed to review the resulting sentence so as to determine that it was "just and appropriate" as is required by Mill v. R.[7] and other relevant authorities. Mr Holdenson pointed out that notwithstanding his Honour's careful analysis of the submission that had been made for the appellant, he merely cumulated the sentences to produce the total effective sentence without having regard to the principle of totality. I consider, however, that, notwithstanding that his Honour did not say that he reviewed the sentence to see that it was just and appropriate, it does not follow that this experienced judge has failed to do so. On the contrary, as Mrs Quin for the respondent pointed out, in the course of the hearing of the plea in mitigation his Honour made it plain, not surprisingly, that he was well aware of the relevant principles to be applied in ordering cumulation, and in particular the principle of totality.

66. Ground 2 was not pursued by the appellant. It follows, therefore, that I consider that the appeal should be dismissed.

70. I agree, and I do so for the reasons advanced by the learned presiding judge.

74. I agree in the reasons delivered by Chernov, J.A. and the orders that he proposes.

[1] [2004] VSCA 45 at [22] per Coldrey, J.A.

[2] [2004] VSCA 46.

[3] See, for example, R. v. Cotry [2002] VSCA 13 at [8] per Winneke, P. and R. v. Pratt [2003] VSCA 186 at [20] per Eames, J.A. where a blood-filled syringe was used.

[4] [2001] VSCA 26 at [11].

[5] Unreported, Court of Appeal, 16 October 1997, at p.4.

[6] See R. v. Roy [2001] VSCA 61; (2001) 119 A.Crim.R. 147 at 149 per Tadgell, J.A., with whom Winneke, P. and Buchanan, J.A. agreed.

[7] (1988) 166 C.L.R. 59 at 63 per Wilson, Deane, Dawson, Toohey and Gaudron, JJ.