R v Knell [2001] VSCA 82

5. The appellant was eventually apprehended after the last robbery in January 2000, during the course of which he was not wearing a bandanna and was apparently captured on the store's video surveillance apparatus. The image was publicised and the appellant identified. He was apprehended by police on 16 February 2000 and thereafter co-operated in the fullest fashion, not only conceding his part in the robbery in which he had been identified but confessing fully to the previous seven robberies.

8. The story which unfolded in the police interview and before the sentencing judge is a depressing although not entirely unfamiliar one. It provokes sympathy not only for the appellant but also for his family, who are obviously devoted to him. The appellant is a very intelligent young man who had, until his crimes, lived a useful and productive life. He was part of a close family unit and devoted many of his energies to community service. He was fit and healthy and a good sportsman. According to character evidence, he enjoyed an impeccable reputation. It appears that things commenced to go wrong in or about 1997. He became engaged to a girl to whom he is now married. They lived together and, for reasons not entirely clear, commenced to experiment with heroin. It is clear that as time went by they became addicted. Their personalities changed and their work rate dropped. The appellant grew apart from his family, who were not told and could not appreciate the nature of the problem. Apparently the appellant and his wife realised that they were addicted and went to their local doctor in April 1999, but, for reasons which the appellant cannot fully explain, although undoubtedly related to his addiction, they failed to disclose fully the extent of their use or the true nature of the addiction. The methadone programme prescribed by the doctor accordingly was ineffectual. There is little doubt, as the judge found, that addiction was the root cause of the robberies: the desire to get more money to pay for more heroin, to pay the rent and to sustain themselves. Since his arrest the appellant and his wife have used their intelligence and inner resources to wean themselves off the drug, have recovered and enjoy the support of their family, and until sentence had rejoined the workforce.

11. These matters were all before the sentencing judge, who sentenced the appellant on 31 August 2000. At the end of the day he imposed sentences of three years' imprisonment for each of the armed robberies committed, which were the subject of eight counts on two presentments. His Honour cumulated two years of the sentence imposed on count 1 on the second presentment upon the sentence imposed on count 1 on the first presentment. The total effective sentence was therefore one of five years, and his Honour ordered that the appellant serve three years of that term before becoming eligible for parole. It is against that sentence that the appellant appeals to this Court pursuant to leave granted on 17 November 2000.

14. The real and only ground argued is that the sentences imposed were manifestly excessive in the circumstances of the case. In support of that ground Mr Papas, who appeared for the appellant with Mr Dempsey, argued that the sentencing judge - who, I note, was a very experienced one - had led himself into imposing a sentence which is said to be manifestly excessive by failing to give appropriate weight to a variety of factors. Those factors include the early plea of guilty, the high level of co-operation, the obvious and genuine remorse and the prior good character and lack of criminal history of the appellant.

17. In particular, Mr Papas relied upon the principles expounded by the Court of Criminal Appeal in New South Wales in the case of Ellis[1], and adopted recently by the High Court in Ryan v. The Queen[2], to the effect that considerable leniency is due to an offender who co-operates to the point of disclosing offences which otherwise might not have been revealed. He submitted that the material before his Honour was sufficient to show that the seven robberies before the last would not or might not have been discovered save for the confession made by the appellant. He submitted that the sentences imposed did not sufficiently reflect the degree of co-operation and disclosure given and made by the appellant. Mr Papas has also pointed to the efforts made by the appellant to rehabilitate himself before the robberies and the successful efforts that have been made since arrest. Mr Papas said the circumstances disclosed in this case were such as to justify what he called a "remarkable result".

20. Undoubtedly Mr Papas will have explained to his client and to his client's family that it is not this Court's function to re-sentence the appellant according to its own disposition. The Court can only interfere with the primary judge's sentencing discretion if it perceives that it is infected by obvious error, none of which is suggested here, or if it is clearly, that is manifestly, excessive.

23. Notwithstanding the many personal circumstances which fell to be taken into account in the appellant's favour, I remain quite unpersuaded that the sentences imposed by his Honour are manifestly excessive. The sentence of three years for each armed robbery - an offence which carries a maximum penalty of 25 years' imprisonment - is, I think, a very moderate one. There is nothing in that sentence which suggests that his Honour had failed to give sufficient weight to the personal circumstances of the appellant, each of which his Honour clearly had in mind.

26. As this Court has frequently said, circumstances personal to an offender cannot be permitted to conceal the gravity of the offence of armed robbery, in which for sentencing purposes principles of deterrence, both general and specific, will always play a prominent role. It is an offence which is calculated to instil into its victims a fear which is heightened when the weapon used is a syringe filled with blood, or a substance designed to imitate blood. As Tadgell, J.A. had reason to say recently, in R. v. Roy[3] - a case, I might say, of a 27-year-old addicted man who had no prior convictions and who had received a sentence of five years' imprisonment with a minimum of three years:

"All that need be said, I think, is that these kinds of armed robberies [and his Honour was referring to armed robberies by drug-addicted people with syringes], prevalent as they are and easy to perpetrate as they are upon soft targets, need to be dealt with as a particularly horrible species of an undesirable genus, but always having regard to their own facts. They are commonly perpetrated by unstable [persons], usually drug addicts, and calculated to instil into the victim an exquisite sense of anguish and fear of the unknown. It is almost as though the [person] is engaging in a kind of biological warfare that will naturally introduce great apprehension into the mind of the victim."

30. A total effective sentence of five years with a non-parole period of three years, for eight armed robberies of a like kind, seems to me, if I might say so, to be an extremely moderate sentence and one which bespeaks the leniency which the judge was bound to accord, and which he said he was going to accord, because of the voluntary and full co-operation which the appellant gave to the authorities in making a clean breast not only of the crime in which he had been detected but also of the preceding seven crimes. A person who commits eight armed robberies on eight different victims would normally expect a far greater degree of cumulation than was made here for the purpose of reflecting the total criminality of his course of conduct. I think that Mr Papas has said all that can reasonably be said, in his usual vigorous

way, on behalf of the appellant, but, as I say, I remain unpersuaded that the sentences which his Honour has imposed were beyond the range legitimately available to him.

46. The formal order of the Court will be that the appeal is dismissed.

[2] [2001] HCA 21.

[3] [2001] VSCA 61.