R v Legarda [2002] VSCA 179

Court of Appeal (Vic)|2002-10-24|Before: ORMISTON, VINCENT and EAMES, JJ.A.

CRIMINAL LAW - Sentence - Armed robbery involving two victims - Infliction of injury justified disparity between sentences imposed in respect of each victim - Order for cumulation of sentence for recklessly causing injury - Double punishment - Sentencing error - Individual sentences upheld.

I shall ask Vincent, J.A. to give the first judgment in this appeal.

The appellant pleaded guilty before the County Court at Melbourne to four counts contained in two presentments, the first of which, presentment No. P01322457, contained two counts of armed robbery (counts 1 and 2) and one count of recklessly causing injury (count 3). The other presentment, No. P01577199, contained a single count of theft. The appellant also admitted having previously appeared before the Magistrates' Court on three separate occasions in respect of offences of dishonesty and having been convicted on a fourth for attempted theft from a motor vehicle and unlawful assault.

After hearing a plea in mitigation of penalty, the sentencing judge on 8 March 2002 imposed the following sentences.

His Honour further directed that six months of the sentence imposed on count 2 and three months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1 and upon each other.

For the offence contained in presentment No. P01577199 the judge imposed a sentence of three months' imprisonment to be served cumulatively upon all other sentences.

On a further summary charge to which the appellant also pleaded guilty, the making of a false report to police, his Honour imposed a sentence of one month's imprisonment with no order for cumulation.

The total effective sentence therefore imposed upon the appellant was imprisonment for three years and six months, in respect of which his Honour fixed a period of two years before she would become eligible for parole. The customary declaration with respect to a period of pre-sentence detention was made and an order issued for the taking of an intimate sample and for the appellant to pay compensation in the sum of $140 to one victim, Maria Huyn Dinh, and $300 to another, Tanya Recinos.

Having been granted leave to do so, the appellant has appealed against the sentences imposed upon her. The notice of appeal initially contained a single ground, namely that "the sentence is manifestly excessive". However, a further ground was added pursuant to a grant of leave by the Registrar on 17 June 2002, which reads:

"The learned sentencing judge erred in imposing different sentences in respect of counts 1 and 2 on the presentment in the light of the circumstances and in the light of count 3 on the presentment."

The background against which the matter has arisen can be described fairly briefly.

Counts contained in presentment No. P01322457

At approximately midday on Saturday 9 June 2001, Tanya Recinos, aged 17, arrived by train at Flinders Street Station. There she met up with her friend Maria Dinh and they walked towards the Elizabeth Street exit ramp. At that stage the appellant was sitting on one of the seats on the platform. She followed the two girls down the ramp and then suddenly grabbed Ms Recinos by the left arm, saying words to the effect, "I'm sorry I have to do this but someone is watching." As she did so she pressed a razor blade into the wrist of her victim. She then led the two girls into the entrance of the women's toilets. When Ms Dinh hesitated, the appellant directed her to come in or else her friend would be hurt. Once inside she demanded their wallets and mobile phones. She threatened them and continued to press the razor blade against the wrist of Ms Recinos, who attempted to attract the attention of another woman who entered the toilets. When that person inquired as to whether everything was all right, the appellant responded that they were deciding what to have for lunch. The woman moved on and after the appellant repeated her demands, the two victims gave their property to her. Ms Dinh handed over her wallet which contained $120 and Ms Recinos gave the appellant her mobile phone and wallet. There was some discussion in consequence of which a Medicare card was returned. The appellant then led the victims out of the toilet and warned them not to report the matter. However, they immediately told the station staff what had occurred and the police were contacted. Ms Recinos sustained two small lacerations to her left wrist and two to her right wrist.

The count contained in presentment No. P01577199.

On Wednesday 18 July 2001, and whilst the appellant was on bail following her arrest in relation to the earlier matter, she drove with another person to a McDonald's restaurant in Whitehorse Road, Balwyn. She entered the premises and stole a mobile phone valued at $2,000 which had been placed on the counter. However, her actions were captured on the restaurant's security video and the police were contacted. When they arrived at the scene the appellant was arrested in a car park nearby and taken to the Kew Police Station.

On 7 March 2001, the appellant reported to the St Albans Police Station. She claimed to have been the victim of an armed robbery at the St Albans Railway Station on the previous day. She alleged that she had been approached by a woman carrying a syringe who demanded $300 from her. She stated that she was alone at the time. When detectives attended at her house some hours later to continue with this investigation, the appellant stated that she could not recall what she had earlier said to the police. She became annoyed when they inquired as to the reason for her lapse of memory and she stated that the incident did not in fact occur. She refused to be interviewed or to assist with the investigation. Although, as I have mentioned, she had told the police that she was alone at the time when she claimed to have been approached, it appears that she was depicted on a closed-circuit television system at the station at approximately 7.39 p.m. on 6 March in the company of a male person. This, I understand, was the approximate time of the alleged incident. There appears to have been no explanation proffered by the appellant as to her motivation for engaging in this conduct.

With respect to the first of the grounds of appeal, as this Court has pointed out on a number of occasions, the question whether or not a sentence is perceived to be manifestly excessive in all of the circumstances does not admit of substantial argument. However, a number of matters have been relied upon by way of written submissions and oral contentions advanced before us.

In support of the appellant's claim that the total effective sentence, the individual sentences imposed and the non-parole period fixed upon the appellant could all be perceived as being beyond the range of dispositions reasonably open to the judge in the circumstances, reliance has been placed upon a number of factors and considerations. First, it is asserted that an effective sentence of three years and six months could be seen to be unduly severe in the case of a youthful offender serving her first term of imprisonment, bearing in mind the early plea of guilty, cooperation with the police and evidence of remorse and rehabilitation. It is further claimed with respect to the total effective sentence imposed that inadequate regard must have been had by the sentencing judge to the fact that the three counts on the first presentment related to offences committed in the course of a single brief episode. In that situation, it was argued, the order for cumulation between counts 1 and 2 could not be seen to have been justified. Nor, it was said, could there have been any significant order made for cumulation in respect of count 3 for the same reason and also bearing in mind the relatively minor nature of the injuries sustained by the victim and the manner of their infliction. When regard is had, it was further contended, to what have been described as the objective features of the offending and the personal circumstances of the appellant, the total effective sentence imposed upon her can be seen to be unduly harsh.

With respect to the individual sentences imposed upon the appellant, the claim is made that the period of 30 months' imprisonment fixed for the offence on count 1 on the first presentment was excessive for the reasons to which I have adverted. The sentence on count 3, it was asserted, was excessive in view of the nature of the injuries sustained by the victim and the evidence that they were recklessly or inadvertently inflicted rather than having been intentionally caused. The offence of the theft of the mobile phone, it was claimed, involved opportunistic activity carried out in a public place. The phone was almost immediately retrieved and returned to its owner. Had this charge not arisen before the court in conjunction with the other offences, it is unlikely, it was said, that a sentence of imprisonment would have been imposed at all.

In support of the appellant's contention that both the individual sentences and the total effective sentence were manifestly excessive, reliance has been placed on a number of assertions that can, I think, be fairly summarised as follows.

With respect to what have been called the objective features of the offending, it was said that:

(i) The conduct comprising the armed robberies put those offences within the lowest end of the range of seriousness of that type of offence.

(ii) These offences were carried out opportunistically and with no evidence or indication of pre-planning.

(iii) The weapon employed was one that was unlikely to cause serious injury. (I would interpolate here that no explanation has been proffered as to why the appellant was present at the station or why she was in possession of a razor blade at all. I certainly do not accept that that razor blade was incapable of causing or unlikely to cause serious injury.)

(iv) The armed robbery offences were committed in a public place in daytime without extreme violence. (Again, I interpolate, there was, as the sentencing judge found, a deal of audacity in the appellant's conduct which must have added to the fear of the victims.)

(v) The offences were committed within a very short period of time.

(vi) There was nothing in the circumstances which would attract any special considerations that might be perceived as aggravating their seriousness.

With respect to the personal factors which it was argued were relevant to the determination of a proper sentence, it was contended:

(i) The appellant was a young person, aged 23, who had not previously been imprisoned and who had a relatively short criminal history for minor offences of dishonesty.

(ii) The appellant had a longstanding heroin dependency which motivated the commission of the various offences. (I interpolate that there was material tendered on the plea which had revealed that the appellant had a drug dependency developed in late adolescence which appears to have been linked to a number of complicating factors. It was argued that her level of personal culpability should have been regarded as reduced in that circumstance.)

(iii) As at the date of her plea, the appellant had responded positively to opportunities for rehabilitation on remand and had remained drug free.

(iv) There was evidence of opinion from Dr Barry Kenny, a forensic psychiatrist, about the possible adverse impact of an extended period of imprisonment in the case of the appellant. Whilst she appears to have demonstrated some drug-related symptoms, Dr Kenny did not consider that she suffered from any significant underlying psychiatric disorder.

(v) The appellant had strong family and community support and treatment available for her on release.

(vi) The appellant's prospects for rehabilitation were considered by the sentencing judge to be good.

(vii) His Honour did not attribute substantial significance to the need for specific deterrence in the appellant's case. (Again, I would interpolate, there is in my view force in the respondent's submission that, in view of the appellant's history, the fact that she was on bail at the time of the commission of the theft on 18 July 2001 and the opinion of Dr Barry Kenny, his Honour may perhaps have been overly generous in his assessment of her prospects for successful reintegration, at least in the short term. However, that view was open to him and must be accepted.)

It is apparent from his Honour's sentencing remarks that he directed appropriate attention to each of the matters to which I have referred and, indeed, he made specific reference to all of them. I need not set out his separate comments, but I observe that he addressed the appellant's personal background, indicated that he was mindful of the seriousness of her drug addiction, and set out some of the detail of her family history, including the sustained efforts made by her parents to assist her. However, whilst acknowledging the efforts that she has made during her incarceration, and accepting that the appellant's prospects of rehabilitation were good, his Honour correctly emphasised the importance of general deterrence as a factor in sentencing in such cases, stating:

"The armed robberies in particular were serious crimes and were carried out in audacious circumstances at a location which is all too often the scene of this type of crime, that is, young people who travel into the city by train for some innocent amusement or pleasure being preyed upon by drug addicts at or around the Flinders Street Railway Station. Armed robbery is one of the most serious crimes on the statute book and unfortunately its incidence thanks to drug addicts is prevalent. It seems clear that unless the courts impose condign punishment in relation to offenders such as yourself when they are brought to justice, the message will not get through. Young vulnerable victims such as your targets here should not have to think twice before using public transport."

With respect to the individual sentences imposed, there is, in my opinion, nothing to suggest that the sentencing judge failed to have regard to any of the relevant sentencing considerations or erred in any specific fashion, and I am unpersuaded that any of the individual sentences could be described as wholly beyond the range available to him in the circumstances. Indeed, I regard each of them as appropriate. I should add that, whilst I would ordinarily have accepted that a lesser sentence or a non-custodial disposition may have been imposed in respect of the theft of the mobile telephone had that offence stood alone, in the applicant's case it must be remembered that this offence was preceded by a number of dishonesty offences and it was committed whilst she was on bail in relation to the other quite serious matters before this Court.

However, as I have earlier set out, the sentence imposed on count 1 on the first presentment was 30 months' imprisonment, whilst that for count 2 was 20 months' imprisonment. Although his Honour has provided no explanation for this disparity, it is, I consider, apparent that he must have taken into account the use of the razor blade in the manner earlier described against the victim in the first count. The existence of a disparity of the order determined as appropriate by the sentencing judge between the sentences imposed for these two counts is, I consider, justifiable in the circumstances as reflecting the nature of the actions perpetrated against the respective victims. A problem arises, however, because his Honour also imposed a sentence of six months' imprisonment on count 3, three months of which was to be served cumulatively upon the sentence imposed on count 1. Whilst I consider that it was appropriate in the circumstances to record a conviction against the applicant for the separate offence of recklessly causing injury, and to impose a sentence of imprisonment for it, it is difficult to avoid the impression that there must have been an element of double punishment involved in the order for cumulation: see R. v. Sessions[1]. Setting to one side the infliction of injury, some differentiation between the sentences imposed in relation to the separate victims might have been sensibly made. However, it does not appear to me that a judge would have been entitled to distinguish to the extent of 50% of the sentence imposed on this basis. In that circumstance, as I have indicated, it is my view that there must have been some punishment for the causing of injury involved in the sentence of 30 months imposed in respect of count 1.

As I consider that the individual sentences imposed in the court below were, and are, appropriate, I need not deal with the question whether the identified error should be regarded as reopening the sentencing discretion generally. What I would propose is that the sentence on count 3 be set aside, the same sentence imposed, but there be no order for cumulation. I would otherwise confirm the sentences imposed and orders made in the court below. The effect of this proposal, if adopted, would be that the individual sentences would be reinstated, as would the orders for cumulation, save for that in respect of count 3 on presentment PO1322457. This would create a total effective sentence of three years and three months, in relation to which I would fix a non-parole period of one year and nine months.

I agree. The sentences may in some respects appear to have been lenient, but the circumstances described are such that they can be properly justified in the special circumstances of the case. The only error that I have perceived, as Vincent, J.A. has pointed out, has been in the cumulation of part of the sentence imposed on count 3 of the first presentment, and I likewise agree that that should not be the subject of cumulation in the orders which this Court substitutes.

I agree with the proposed orders and the reasons given by Vincent, J.A.

2. Order that the sentences imposed by Judge Morrow on 8 March 2002 be set aside.

3. In lieu thereof the Court orders, on presentment P01322457 (the first presentment), on count 1, that the appellant be sentenced to a term of 30 months' imprisonment; on count 2, that she be sentenced to a term of 20 months' imprisonment; on count 3, that she be sentenced to a term of 6 months' imprisonment.

4. On presentment P01577199 (the second presentment), the Court orders that the appellant be sentenced to a term of three months' imprisonment.

5. On the summary charge dated 3 July 2001, order that the appellant be sentenced to a term of one month's imprisonment.

6. The Court orders and directs that six months of the sentence on count 2 of the first presentment, and that the term of three months' imprisonment on count 1 of the second presentment be served cumulatively on the sentence imposed on count 1 of the first presentment and upon each other.

7. Further order that all other sentences be served concurrently and declare that the total effective sentence is three years and three months.

8. The Court further orders that the appellant serve a period of 21 months before becoming eligible for parole.

9. The Court declares and directs the usual entry be made to the effect that 479 days have been served by the appellant in custody to this date.

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