R v Lam [2009] VSCA 37

2 The offences were committed against a family who owned and managed a milk bar in Hawthorn. Early on a Sunday morning, the appellant, who was then aged 27 years, and a female companion, one Naomi Orbach, entered the milk bar armed with a knife which the offenders had stolen from a Coles store. They were disguised with balaclavas. They approached Xan Gao, who was serving behind the counter. The appellant locked the front door. The offenders demanded that Mr Gao lie down. He refused. The ensuing commotion caused other members of the family to enter the shop. Mr Gao's elderly father was told to get down, while Ms Orbach grabbed Mr Gao. Mr Gao's father was stabbed in the arm by the appellant; he collapsed to the floor. The appellant cut Mr Gao's forehead. Mr Gao, his wife and mother were pushed into the house part of the shop, and demands were made for money and phone cards. The appellant found a bag of money containing $1,820. He also took phone cards and cigarettes. The appellant pushed the three victims into a toilet and told them to stay there. Mr Gao's father was taken to hospital, where he remained for three days and was treated by a vascular surgeon.

3 The sentencing judge said that she considered the appellant was the instigator of the offences and the principal offender. Ms Orbach was a willing participant, although she did not know or contemplate the actual level of force that was to be used by the appellant.

4 The appellant was born in Australia of parents of Vietnamese origin. The appellant left school in year 11 and has not since had any regular or sustained employment. The appellant began using heroin in year 9 while at school and continued to be a addicted to drugs until the time of his arrest. The appellant had 57 convictions from eleven court appearances, including convictions for offences of dishonesty, armed robbery and intentionally causing serious injury. The armed robbery offences arose from the appellant robbing shops while armed with a knife.

5 A report by a psychologist was tendered in the course of the plea. The psychologist said that the appellant's family had businesses which required a great deal of their time and attention, with the result that they spent little time with their family. The appellant's parents separated when he was 20 years old. The psychologist was of the view that the appellant's intellectual functioning was average. The appellant had made many attempts to end his addiction to drugs, but without success. The psychologist expressed the view that the appellant did not have any particularly antisocial personality traits, other than those which arose from his need to obtain heroin. He expressed remorse and had a good understanding of how his actions affected his victims.

6 A total effective sentence of four years' imprisonment with a minimum term of 18 months' imprisonment was imposed on Ms Orbach. Her sentence was reduced on appeal to a total effective sentence of two years and six months' imprisonment with a minimum term of eight months' imprisonment, after evidence was led of a significant deterioration in her health after she was sentenced.

7 There are a number of grounds of appeal. It is, however, necessary to refer to only one of the grounds.

8 The offences were committed while the appellant was on parole. At the time the sentence was passed it was not known whether the Parole Board would take any action as a consequence of the breach of parole.[1] Subsequently, the Parole Board cancelled the appellant's parole and ordered him to serve the outstanding period of parole of 22 months. Accordingly, the appellant is now to be re-sentenced taking into account the total term which the appellant must serve.[2]

9 The armed robbery carried out by the appellant was a serious example of the crime. A vulnerable family, including elderly grandparents and small children, was terrorised. Two members of the family were injured, one seriously. The appellant has committed similar offences in the past and committed these offences while on parole. On the other hand, there were a number of mitigating circumstances upon which the appellant could rely: his plea of guilty, the fact that he made full and frank admissions to the police, a measure of remorse which he appears to have experienced, his insight into his offending, and the risk that the appellant would become institutionalised. Importantly, there is a period of imprisonment the appellant must serve as a consequence of the breach of parole. I am conscious of the restraint that the principle of totality requires.

10 I would re-sentence the appellant to be imprisoned for a term of five years on count 1, for a term of two years on count 2, for a term of nine months on count 4, and for a term of six months on each of counts 6, 7 and 8. I would cumulate six months of the sentence on count 2 and one month of each of the sentences on counts 4, 6, 7 and 8 on each other and on the sentence on count 1. The total effective sentence would be five years and ten months' imprisonment. I would fix a term of four years and six months' imprisonment before the appellant is to be eligible for parole.

1. The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of five years on count 1, for a term of two years on count 2, for a term of nine months on count 4 and for a term of six months on each of counts 6, 7 and 8.
2. It is ordered that six months of the sentence on count 2 and one month of each of the sentences on counts 4, 6, 7 and 8 be cumulated upon each other and on the sentence on count 1.
3. The total effective sentence is five years and ten months' imprisonment.
4. It is ordered that the appellant serve a term of four years and six months' imprisonment before he is to be eligible for parole.
5. It is declared that the period of 1,005 days is be reckoned as having been served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

[1] See R v Piacentino [2007] VSCA 49; (2007) 15 VR 501.

[2] See R v Alashkar [2007] VSCA 182; (2007) 17 VR 65.