R v Lee [2006] VSCA 80

1 I will invite Vincent, J.A. to deliver the first judgment.

2 At about 7.00 p.m. on Friday 27 August 2004, the appellant and a long-time friend named Peter Warren left the appellant's home in Meadow Heights in a Ford panel van being driven by the appellant. Warren told him that he needed money to pay a debt to a drug dealer and they agreed to commit an armed robbery to secure it.

3 After driving around the Broadmeadows area searching for an appropriate target, they eventually stopped in the vicinity of a milk bar in Railway Crescent which looked suitable and the appellant parked the van approximately 200 yards from the shop. They then alighted, with Warren arming himself with a black tyre lever approximately 30 to 40 centimetres in length that he found in the vehicle.

4 The two men then entered the milk bar, wearing hoods that covered most of their faces. At that stage, the proprietor, Domor Ramadan, was having a meal with his wife and three children in their residence at the rear. On hearing someone enter the shop, Mr Ramadan went to the counter. He was there approached by Warren, who was wielding the tyre lever above his head, while Lee stood nearby. Warren demanded money and, when Mr Ramadan refused to comply, he jumped over the counter and continued to threaten him with the tyre lever whilst demanding cash. A struggle ensued and Mr Ramadan was struck to the face by Warren with his fist and knocked to the floor. Whilst the unfortunate man was in this position, Warren kicked him in the head and chest region, rendering him unconscious.

5 The victim's wife, Saada Ramadan, entered the shop and saw her husband being struck. She was then confronted by the appellant, who forcibly grabbed her and, holding her by the arms, pushed her into the residence, closing the door separating the two parts of the premises. He then returned to the front counter and helped Warren steal approximately $500 from the cash register. Warren also grabbed eight to ten packets of cigarettes and the two men ran from the store.

6 After they had gone, Mrs Ramadan opened the door between the milk bar and the residence and found her husband lying behind the counter unconscious and in a pool of blood. Police and ambulance attended a short time later and he was conveyed to the Northern Hospital. Mr Ramadan had suffered a five-centimetre laceration to his head that required sutures and what was described in the material as a fractured right knee.

7 When subsequently interviewed, the appellant told the police that he had engaged in this activity as Warren needed money. Initially it was intended that they would waylay someone on the street, but they finally decided to rob the milk bar. He spent his share of the proceeds on petrol, food and cigarettes.

8 In due course, each of them pleaded guilty on separate presentments to the armed robbery of Domor Ramadan. Warren pleaded guilty to recklessly causing serious injury to Mr Ramadan and the appellant to the unlawful assault and imprisonment of Saada Ramadan.

9 Warren admitted 78 prior convictions arising from 11 court appearances between 1 April 1997 and 4 April 2000. They related to a large number of crimes of dishonesty, including burglary, attempted burglary, theft, attempted theft and going equipped to steal. There were convictions for assault with a weapon, reckless conduct endangering life and the possession of a regulated weapon, as well as for a variety of other matters, involving, inter alia, the possession and use of drugs of dependence.

10 The appellant admitted six findings of guilt for theft and obtaining property by deception arising out of one court appearance, on 6 February 2001.

11 After hearing submissions in mitigation of penalty made by counsel for each of the offenders, the learned sentencing judge, on 7 July 2005, imposed the following terms of imprisonment:

On count 1 - armed robbery - four years' imprisonment;

On count 2 - recklessly causing serious injury - 18 months' imprisonment.

His Honour directed that 12 months of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1. This created a total effective sentence of five years' imprisonment, in respect of which he fixed a non-parole period of three years.

On count 1 - armed robbery - three years' imprisonment;

On count 2 - false imprisonment - 12 months' imprisonment.

His Honour directed that six months of the sentence imposed on count 2 be served cumulatively with that fixed on count 1, thereby creating in his case a total effective sentence of three years and six months imprisonment, in respect of which he fixed a non-parole period of two years and four months.

12 Having been granted leave to do so, the appellant seeks to overturn the sentences imposed upon him on the grounds that -

1. The total effective sentence and the minimum term of imprisonment are manifestly excessive.

2. The learned sentencing judge erred in the application of the parity principle by not ordering a greater disparity between the sentences imposed on the appellant and Peter Warren.

3. The learned sentencing judge erred in the application of the totality principle by ordering significant cumulation of the sentence imposed on count 2 with that imposed on count 1.

4. The learned sentencing judge erred by not imposing a greater disparity between the minimum term and the head sentence.

13 Warren, to whom, on application made pursuant to s.582 of the Crimes Act 1958, I had earlier granted leave to appeal against sentence, sought further leave to abandon his appeal upon the indication being given by the Court at the commencement of the present hearing that it may become necessary to give consideration to increasing the sentences imposed upon him. The view was expressed at that stage that, on their face at least, a question had arisen as to whether they were manifestly inadequate in the circumstances. Leave was granted and the appeal of Lee was then argued.

14 I now turn to the individual circumstances of the two offenders.

15 The appellant was at the time of sentencing aged 23 years. His prior court appearance related to thefts committed at a department store at which he was working when he was aged about 19 years. The sentencing judge stated that, although they possessed some relevance, it had to be regarded as limited in the circumstances.

16 The appellant appears to have had a relatively stable family background. He left school in year 11, completed a three-year apprenticeship in cabinet making and thereafter had an excellent employment history. He had not been involved in the abuse of drugs or alcohol and, save for the matter to which I have adverted, appears to have shown himself to be a person of good character.

17 With respect to his motivation for participation in these offences, the sentencing judge accepted that in the period leading up to the commission of these offences, the appellant was in a relationship with a young woman who suffered from chronic depression and agoraphobia. In consequence of these conditions, she would attend poker machine venues and use the appellant's credit card to finance her outings. A bank statement tendered on the plea indicated that approximately $15,000 had been so diverted in the previous year. As a consequence of these matters, the appellant had undergone a period of personal and financial difficulty which contributed, together with his friendship with Warren, to his preparedness to engage in conduct that seemed to be out of character.

18 His Honour accepted that the appellant was not the instigator of the offences, but nevertheless considered that his role could not be described as minimal. Although he did not exhibit any violence towards the shopkeeper, he isolated Mrs Ramadan from the shop and assisted his confederate in taking the money.

19 Finally in this context, I would indicate that his Honour accepted that the appellant's prospects of rehabilitation appeared to be good.

20 Warren was also aged 23 years at the time of sentencing and was living with his parents. His background was significantly more unstable. His father had been a member of the army for 23 years and consequently the family moved relatively regularly as he was posted to a number of locations throughout Australia. This resulted in significant disruption in Warren's education and he left school halfway through year 9. He then commenced work as an apprentice butcher, but had to quit that activity when he contracted blood poisoning. Thereafter he engaged in a number of different types of employments, including cabinet making, farm work, process work in a factory and finally secured a job for a local council until August 2004 when a full-time position was denied to him as a consequence of his criminal history. By reason of problems that had arisen in his family life, Warren had been placed into the care of the Department of Human Services at the age of 13 years. His father, who it seems was a strict disciplinarian, was drinking excessively and his mother had developed a gambling problem. His Honour accepted that Warren was, at around that time, also the victim of a sexual assault that had scarred him psychologically. Against this background, he became involved in the use of alcohol, cannabis, amphetamine and the commission of the various offences mentioned earlier. His motivation for engagement in the events in the milk bar was to secure money to pay a debt to a drug dealer and he recruited his friend to assist him. The violence with which he assaulted Mr Ramadan is apparent from the fact that the victim was rendered unconscious, kicked in the head and chest whilst he was on the floor, and from the fact that he sustained quite serious injuries.

21 In support of his complaint that the appellant has a legitimate sense of grievance at the level of disparity between the sentences imposed on his co-offender and him, Mr Wheelahan drew attention to four matters:

 First, he emphasised that Warren was the instigator of the armed robbery, which was carried out primarily for his benefit.

 Secondly, it was Warren who was responsible for recklessly causing serious injury to Mr Ramadan and, although the conduct of the appellant in forcing Mrs Ramadan from the shop was serious, it could not be regarded as being of the same order.

 Thirdly, Warren had an extensive history of offending which included the commission of crimes of violence, whereas the appellant had only one prior appearance, and that was for offences of dishonesty, which, the sentencing judge accepted, possessed limited relevance.

 Fourthly, the appellant's prospects for rehabilitation were significantly better than those of his co-offender. Consequently, the need to emphasise specific deterrence had to be perceived as reduced.

22 The false imprisonment which consisted, Mr Wheelahan pointed out, of pushing Mrs Ramadan back out of the shop into the residential area, was, he contended, at the lower end of the range of seriousness and constituted an integral part of the robbery itself. This should have been recognised at least by ordering a greater degree of concurrency of the sentence imposed in respect of this offence, or by the imposition of a lesser sentence, if not more appropriately addressed as a circumstance of the robbery without the laying of a separate count.

23 Finally, he argued that, given the totality of the circumstances, the head sentence and minimum term in the case of the appellant fell outside the range of sound discretionary judgment. In support of that claim, he relied also upon his client's co-operation with the police, his early entry of a plea of guilty and the presence of evidence of remorse. Given the appellant's youth, limited criminal history and prospects of rehabilitation, the disparity between the head sentence and minimum term could, he submitted, also be seen to be inadequate.

24 In response, Ms Pullen who appeared for the Crown submitted, and in my view with considerable justification, that it was important not to undervalue the role played by the appellant in the commission of the offences committed against the two victims. Although he was not the instigator, he was clearly a willing and active participant in the robbery and his conduct in relation to Mrs Ramadan was appropriately the subject of a separate count, involving as it did the physical manhandling of the victim who was endeavouring to come to the aid of her husband, who she saw being attacked by Warren. It had to be borne in mind, Ms Pullen contended, that the appellant engaged in the armed robbery of effectively defenceless victims, who were selected specifically because they were seen to be "soft targets". She submitted, and I agree, that the community is entitled to look to the courts for protection against such offending and to expect that condign punishment will be imposed in such cases in order to make clear to those who may be minded to engage in it that conduct of this kind will not be tolerated. This Court has on a number of occasions emphasised the seriousness with which offences committed against persons who work in isolated and unprotected environments will be viewed. Such persons as taxi drivers and those who work in service stations, convenience stores or small family businesses are extremely vulnerable and are clearly entitled to the full protection of the law. That protection of the law means that the principle of general deterrence assumes considerable significance.

25 As we indicated at the commencement of the hearing, notwithstanding the matters advanced in mitigation of penalty in the case of Warren, the sentences imposed upon him could at least be described as lenient and arguably manifestly inadequate.

26 It is also apparent that the situations of the two offenders differed in a number of important respects and that the proper exercise of sentencing discretion required that those differences were reflected in the sentences imposed upon them.

27 This has created a somewhat difficult situation. Kirby, J. in his judgment in R. v. Postiglione[1] emphasised the importance of the principle of parity of treatment of co-offenders as a matter of basic fairness and justice. Sometimes its proper application will mean that like sentences must be imposed, but in others, where justice requires that some discrimination be made between them, it must be reflected in the sentences themselves. In this context his Honour stated:

"Obviously, the adjustments for the parity and totality principles, whether performed by a sentencing judge or an appellate court, involve subtle considerations which defy precision either of description or implementation. It has been recognised by this Court that the adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed. Whilst this is unfortunate, it is to be preferred to imposing a sentence which is excessive in its totality or unfair when tested by parity in the punishment of comparable offenders. The risks of unacceptable disparity will be lessened if it is remembered that the touchstone adopted by the law is the avoidance of a justifiable sense that an injustice has occurred."[2]

28 In the present case, a problem has arisen from the imposition by the sentencing judge upon the co-offender of what appears to me to have been a remarkably low sentence, given the criminal history and level of violence involved in his conduct. By comparison, the effective sentence and non-parole period fixed in the case of the appellant appears to be disproportionately long, although neither could otherwise be viewed as manifestly excessive, or indeed, inappropriate.

29 In order to address this situation, and, I confess, with a degree of unease, so that proper effect can be given to the principle of parity, in this case I would allow the appeal, re-impose the individual sentences but make no order for cumulation. That would create in the case of the appellant a total effective sentence of imprisonment for three years, and I would fix a non-parole period of 18 months.

32 The orders of the Court will be -

The appeal is allowed.

The sentence passed below is set aside and in lieu thereof the appellant is re-sentenced to be imprisoned for a term of three years on the count of armed robbery and for a term of 12 months' imprisonment on the count of false imprisonment, producing a total effective sentence of three years.

It is ordered that the appellant serve a term of 18 months' imprisonment before becoming eligible for parole.

It is declared that the appellant has spent 284 days in pre-sentence detention and the fact that that declaration has been made is to be entered in the records of the Court.

[1] [1997] HCA 26; (1997) 189 C.L.R. 295.

[2] [1997] HCA 26; (1997) 189 C.L.R. 295 at 341.