R v Kittson [2008] VSCA 77

2 For the reasons given by Forrest AJA I joined in the orders pronounced on 5 May 2008.

**3 The appellant, Stuart Kittson, pleaded guilty in the County Court to one count of armed robbery (Count 1) and two counts of attempted armed robbery (Counts 2 and 3). On Count 1, the appellant was sentenced to two years' imprisonment. On Counts 2 and 3, the appellant was sentenced to one year's imprisonment on each count. The sentencing judge then directed that six months of the sentences for Counts 2 and 3, the attempted armed robbery charges, be served cumulatively upon each other and upon the sentence for Count 1 (the armed robbery charge), making a total effective sentence of three years' imprisonment. His Honour directed that a non-parole period of 15 months be fixed.

4 On 17 January 2008 a judge of this Court granted the appellant leave to appeal pursuant to s 582 of the Crimes Act 1958.

5 In both written and oral submissions, senior counsel for the Crown accepted that the sentencing judge fell into error in fixing the sentence imposed on Count 2. It**

was apparent, by comparison with the penalty imposed on Count 3, that the sentencing judge had not made any allowance for the fact that the offending the subject of Count 2 was voluntarily disclosed by the appellant to the police. Otherwise this offence would have gone unreported. The appellant's actions were a significant mitigatory consideration[1] which should have led to a lesser sentence on Count 2.

**6 It was accepted by senior counsel for the Crown that this error led to the sentencing discretion of this Court being re-opened on each of the counts and the oral argument on appeal was devoted to that issue.

7 At the conclusion of the hearing of the appeal, the Court made the following orders:

(b) The sentence imposed below be set aside and in lieu thereof the appellant is sentenced as follows:

(c) The Court directs that the sentence imposed on Count 2 be served concurrently with Count 1 and three months of the sentence imposed on Count 3 be served cumulatively on Count 1, making a total effective sentence of 21 months.

(e) A period is declared of 272 days of pre-sentence detention.

**8 The following comprise my reasons for the sentence imposed by this Court.

9 Counsel for the appellant urged the Court to impose a partly suspended sentence, the non-suspended part being that period of imprisonment of nine months served already by the appellant. If the Court was to accede to this submission, then the appellant would have been released immediately.

10 Senior counsel for the Crown contended that a partly suspended sentence was not appropriate and that the proper manner in which to approach the exercise was to undertake the standard approach. The Court should determine the head sentence and then an appropriate non-parole period after which the appellant could be released on parole if that was the decision of the Adult Parole Board. Senior counsel, however, did not contend that this Court should re-impose the sentence fixed by the sentencing judge.

11 In my view, the approach suggested by senior counsel for the Crown is to be preferred.**

**12 The appellant is 30 years of age, having been born on 8 July 1977. At the time of these offences he was unemployed, having been retrenched shortly prior to Christmas.

13 He left school in Year 9 after being expelled from Craigieburn High School. Subsequently, he worked as a gardener for two years and thereafter in the tyre fitting business. Although he does not have any formal qualifications, he had gained expertise in this job prior to his imprisonment, working as a specialist front-end mechanic.

14 He has limited contact with his family. Although he has had relationships in the past, at the time of these offences he was living alone with a group in rented accommodation.

15 The appellant has a significant physical disability. He now has about five percent vision in his right eye, which has required numerous operations in the past. This condition has, unfortunately, caused him problems over the years.

17 The sentencing judge summarised the offences in the following way.

18 The count of armed robbery on 6 January 2007 (Count 1):**

In the early hours of the morning on Saturday 6 January 2007, armed with a length of fence paling, you entered the Oz Fuel Service Station in North Melbourne. You first waited outside in a bus-stop to observe that there were no customers and, when you entered the service station, went first to the toilet, and remained there for a minute or two. You then came out of the toilet, approached the counter, removed the length of paling from your pocket, thrust it on the counter and demanded money. The attendant mistakenly perceived the weapon as being a knife and handed you the sum of $120. You then ran out of the store. An hour or so later, you, in fact, rang the store and had a conversation with the operator and the police in which you gave a false account of the events, but did leave a mobile phone number which you had previously used.

19 The count of attempted armed robbery on the following day, 7 January 2007 (Count 2):

The first attempt count occurred on the following day between 5pm and 6pm, when you entered a Caltex Service Station in North Melbourne and approached the operator who was stacking shelves. You had with you a weapon described as a sharp object and told the operator 'I'll give you ten seconds to give me $250'. The operator then locked himself in the console area and threatened to call the police, at which time you left the store empty-handed.

20 Then, roughly three hours later, having travelled by train to Maidstone from Melbourne, the second count of attempted armed robbery (Count 3):

At about 9.15 p.m. the same evening, you attended a Caltex service station in Maidstone. You approached the counter, banged your hand on the counter top, and then selected some confectionary. You handed over a $5 note and, when the till was opened, you produced a 20 centimetre long piece of wood, pointed it threateningly at the operator and said to him, 'You have ten seconds to hand over $250'. At that point, another customer attended the area and you told the attendant, 'Don't worry' and decamped."

**21 Armed robbery is a serious offence. It carries a maximum penalty of 25 years' imprisonment.[2] Attempted armed robbery carries a maximum penalty of 20 years' imprisonment.[3] This Court has, in the past, said that certain types of armed robberies call for a 'condign sentence'[4] and that 'deterrence is a matter that should be given priority'.[5]

22 Of particular significance in the sentencing of the appellant in the present case is the fact that in each of the offences he carried a weapon and was endeavouring to extract money from persons described by the sentencing judge as 'soft targets'. Each of the offences, which were separated in time and place, required a degree of very simple planning. In other words, they were not impetuous acts, but acts into which some thought had gone. In both the first and third counts, despite no victim impact statements being filed, it is reasonable to assume that there was a degree of apprehension and fear on the part of the individual service station employees.

23 Against these significant considerations there are, however, a number of aspects of the appellant's behaviour which place his actions in perspective.

24 Firstly, motive. The appellant had been pressed by his fellow tenants to make a payment of $250. He had lost his job just before Christmas. He could not find the money through his friends and did not want to let his fellow tenants down. His motive was not one of greed but, as he perceived it, ensuring that the group was not evicted from the premises.

25 Secondly, in the course of the three offences, he did not wear any form of disguise despite the fact that he had worked in service stations in the past and was aware of the presence of CCTV. Nor did he carry a firearm which would have increased the risk of injury or death to the victims.

26 Thirdly, his actions surrounding the various offences demonstrate a real ambivalence (indeed, contemporaneous regret) as to his own behaviour. For instance, after committing the armed robbery, the first count, he rang the service station shortly afterwards with the idea of surrendering to the police, but was scared off when a police officer (who happened by chance to be there) came onto the telephone. On the occasion of the second count, his conduct made so little impact on the service station employee that he did not contact the police. On the occasion of the third count, he desisted in his attempt to rob the service station when another customer entered the shop, saying to the console operator 'Don't worry'.

27 These matters do not in any way exculpate the appellant from the consequences of his actions. However they do place these offences in a different light when compared to many other armed robberies, or attempted armed robberies, that come before the Courts.

28 The mitigatory considerations can be summarised as follows:

(b) The appellant pleaded guilty at the first available opportunity.

(c) The appellant, in the course of his record of interview, made full and frank disclosures of his role in not only the offences the subject of Counts 1 and 3, but identified for the police his role in the attempted robbery the subject of Count 2.

(d) The appellant was patently remorseful, particularly in the light of the fact that he had worked in a petrol station and was aware of the fear that such conduct could engender in staff at a service station.

(e) The appellant's background is one of regular work, with intermittent periods of unemployment. Indeed, at the time of trial he was engaged in full-time employment.

(f) His prospects of rehabilitation are high. The appellant does not have a drug or alcohol problem. His actions were prompted by a high degree of stress caused by his personal situation and he is, in my view, unlikely to re-offend. This is also the opinion of the consultant psychologist, Ms Elizabeth Warren.

(g) The consultant psychologist also describes the appellant as being of low average intellectual ability. She concluded that at the times of his offences he was not thinking 'clearly or rationally'.**

**29 I have, as I must, taken into account the principles set out in s 5 of the Sentencing Act 1991. Armed robbery is, indeed, a serious crime and will generally warrant a significant period of imprisonment; however the sentence imposed must be proportionate to the gravity of the particular crime considered in the light of the objective circumstances.

30 In this case, each of the offences clearly falls into the lowest range of armed robbery and attempted armed robbery offences. The mitigatory considerations are powerful, particularly that of the appellant's previous good character, the prospects of rehabilitation and clear remorse for his conduct.

31 In these somewhat out of the ordinary circumstances, I consider that the appropriate sentences are those set out in paragraph 7 of these reasons.

[1] R v Ellis (1986) 6 NSWLR 603, 604; R v Brazel [2005] VSCA 56; (2005) 153 A Crim R 152, [21]-[22]

[2] Section 75A(1) Crimes Act 1958.

[3] Section 75A(1) and s 321M Crimes Act 1958.

[4] R v Williscroft [1975] VicRp 27; [1975] VR 292, 302.

[5] R v Bortoli [2006] VSCA 62 [23].