R v Madeira [2002] VSCA 5

10. After considering a plea advanced by counsel on his behalf in mitigation of penalty, the sentencing judge directed that the appellant be imprisoned for a period of five years on count 1, three years on count 2, three years on count 3, two years on count 4 and six months on count 5.

13. His Honour further ordered that the whole of the sentence imposed on count 2 and one year of the sentence on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of nine years' imprisonment in respect of which a non-parole period of seven years was fixed.

16. Having been granted leave to appeal to this Court pursuant to s.582 of the Crimes Act, the appellant asserts -

(i) that the sentence imposed upon him is manifestly excessive, and

(ii) that the sentencing judge erred in ordering total cumulation of the sentence imposed on counts 1 and 2.

22. I now turn to the circumstances of the various offences.

26. On 31 March 2000 the appellant, who was at that time aged 20 years and undergoing a sentence of 18 months' detention in a youth training centre at Malmsbury, was granted weekend leave. A mere five hours later, he went to the vicinity of the home in Yarraville of an 86-year-old man named Ervin Apinis. Mr Apinis, who lived alone, was described by the sentencing judge as infirm and feeble. When his dog detected the presence of the appellant and commenced to bark, Mr Apinis went to his front door and, observing no one, stepped outside. He then saw the appellant on his front lawn.

29. It is likely, in view of the general circumstances, that the appellant immediately perceived Mr Apinis to be a suitable target of opportunity and on the pretext of discussing the cutting of his proposed victim's lawns, he secured entry to the house. Once inside, he grabbed Mr Apinis and threw him onto a bed. The unfortunate man struggled but, not surprisingly, he was overcome by his considerably younger and clearly much stronger assailant. His hands were tied behind his back with the braces he was wearing. The appellant then took Mr Apinis's wallet from a trouser pocket.

32. Despite his situation and fragility, the victim continued to scream and yell for help. The appellant then put a rag in his mouth. As he was doing this, Mr Apinis, still struggling, bit him on the hand. The appellant responded by striking him around the head and pulling his braces so that they pressed against his throat making it difficult to breathe.

35. The appellant later told the police that he observed that Mr Apinis was bleeding from both ears. I consider that this admission is significant when regard is had to the period of time that elapsed before the appellant made any attempt to secure assistance for his victim. Having observed that bleeding, the appellant must have contemplated the possibility that Mr Apinis may have been seriously injured. I will return to this aspect.

38. At some stage, Mr Apinis found himself on the floor and he continued to call for assistance as the appellant, who remained in the house for some hours, ransacked the premises looking for items of value. His victim remained on the floor until he was discovered by his daughter at about 8.30 on the following morning, lying in a pool of urine.

41. Upon admission to hospital, Mr Apinis was found to have sustained a number of injuries, including swelling to the neck and bleeding from both ear canals. His hands were swollen, bruised and blistered.

44. The injuries were regarded as consistent with the history of the prolonged time during which both his wrists and neck were tied. As the potential existed for the airways to be further compromised, the neck injuries were considered by the medical practitioner who attended him to be particularly serious.

47. Mr Apinis remained in hospital for a month as a consequence of this attack before he went to live with a son in New South Wales. He could, it appears, no longer live independently, having lost the confidence to do so. This, in my experience, is a common reaction, particularly among the elderly, to incidents which shatter the victim's sense of personal security.

50. In a subsequent interview with the police, the appellant stated that he had gone to the house with a companion with the intention of obtaining money for heroin. He claimed to have been "pretty stoned" and stated that he took $50 and a keycard from the victim's pocket. The sentencing judge, quite reasonably in my opinion, rejected the claim, which was at odds with the victim's version, that there was a co-offender present at the time. If any such person existed, he was not seen or heard by Mr Apinis and clearly did not participate in the attack made upon him.

53. Whilst it is evident that the appellant acted with little regard to his victim's welfare, it should be added that he poured water on his face at one stage when Mr Apinis indicated that he was sweating. The appellant also telephoned the police after leaving the house to inform them of Mr Apinis's plight. However, I observe that this did not occur until approximately 7 p.m., long after he had observed the bleeding earlier mentioned and after he had unsuccessfully attempted to use the victim's keycard to extract money from his account at an automatic teller machine. The police did react to his call and members attended at the premises but, being unable to evoke any response, they left without locating Mr Apinis on the floor.

56. It is not clear from the material before the Court whether the appellant returned to Malmsbury upon the expiration of his leave. Presumably he did, as I note that he completed his youth training sentence on 31 July 2000.

60. It was about a month later, on 1 September, that at 11.30 a.m. a young woman named Vesna Atanasovska was asleep in her parents' home in Maribyrnong when she awoke to find the appellant in her bedroom. He was wearing a mask and holding a large knife in his hand. She recognised the knife as having come from their kitchen. The mask was formed by a jumper tied around his head and with eye holes cut out. The appellant was wearing a pair of her father's socks on his hands.

63. He made a demand for money and jewellery and forced her at knife-point to assist him in a search of the house. He stole jewellery valued at approximately $34,000 from her parents' bedroom and a watch from her sister's room, in addition to her mobile phone, car keys and $20 that she had in her purse.

66. Finally, the appellant returned Miss Atanasovska to her bedroom where he tied her up with neckties belonging to her father. He apologized for touching her and said, "You know that I'm going to have to tie you up so I can get away."

69. He stated that he would call the police in ten minutes and let them know what had happened. As he was leaving, he asked Miss Atanasovska whether she thought that she would be able to get out of there.

72. Miss Atanasovska extricated herself from her bonds, apparently quite quickly, and rang the police. While she was waiting for them to arrive, the telephone rang and she heard a voice which she recognized as that of the appellant.

75. The young woman was understandably terrified during this experience and in fear that she would be stabbed. His Honour drew attention in his sentencing remarks to the profound and continuing effect that the incident has had upon her. Again, this is not an uncommon reaction to incidents of this kind and provides one of the reasons underlying the approach of both the legislature and the courts to such offences.

78. On the other hand, the appellant boasted to her of his calmness and appeared to have been very pleased with himself, saying at one point, "I think you can tell I've done this before because I'm so calm." At another stage and in the same vein, he asked his victim, "Do you know what this is called?" She responded, "No." He then said, "It's called aggravated robbery. The police will tell you when they get here."

81. As he did with respect to the earlier offences, he subsequently claimed that there was another offender involved. And again there was nothing to support this possibility which was reasonably rejected by the sentencing judge.

84. The appellant claimed in his police interview that he was affected by drugs on each of these occasions. However, there is nothing in the evidence which lends support to the suggestion that he may have been grossly affected by any such substance at the time he entered the home of Mr Apinis, and Miss Atanasovska obviously did not gain the impression that that may have been the case. He appears to have been in clear command of his faculties, although, as the sentencing judge accepted, he may well have consumed some drugs and, indeed, may well have wanted money to obtain more. The appellant was in no hurry to leave either premises and there is no indication in the material before the Court that he was agitated or that he experienced any significant sense of anxiety or apprehension concerning his possible detection at the time of his assault upon Mr Apinis or Miss Atanasovska. Certainly he appears to have been relaxed and confident during the period that he was present in the house of Miss Atanasovska. The degree of comfort with which he appeared to embark upon the commission of very serious offences is one of the disturbing features of his behaviour and augurs badly for the future.

88. As his Honour stated, very little is known about the circumstances surrounding the attempted entry of the premises referred to in count 5, apart from the fact that the appellant smashed a window and was located nearby in circumstances indicating that he intended to enter the building.

92. The appellant was, as I have earlier mentioned, quite young at the time of the commission of the offences, but he was certainly no stranger either to criminal activity or the courts. He had acquired what his Honour referred to as "a significant criminal record", commencing at about the age of 17 years and arising from six appearances before the Children's Court, seven appearances before a Magistrates' Court and one before the County Court at Melbourne. Altogether 36 offences were involved, ranging from quite minor matters to much more serious crimes of theft, burglary and armed robbery. At different times, he has been fined, placed on a bond to be of good behaviour, released on probation, given community-based orders, placed on an intensive correction order, given a suspended sentence, sentenced to detention in a youth training centre and finally imprisoned. His record constitutes a litany of broken undertakings and breached opportunities, as those before whom he has appeared, recognizing his youth and level of maturity, endeavoured to avoid his incarceration as a young person in either the juvenile or the adult prison system.

95. No explanation for the appellant's engagement in these activities can be derived from his background, which was unremarkable. He was born in Portugal and migrated with his family to Australia when he was one year old. His father is a self-employed plasterer and his mother performs home duties. He is the youngest of six male children in a family with no history of marital disturbance, criminality or substance abuse. Dr Lester Walton, a very experienced forensic psychiatrist who examined him, detected no sign of psychotic disturbance and expressed the opinion that he was cognitively intact and of normal intelligence.

98. The appellant is, however, according to his own statements, a poly drug user. He commenced using marijuana at the age of 14 years and has since then abused heroin and ecstasy. Dr Walton, in a report tendered in the course of the plea, said that he had been unable to develop any clear understanding as to what may have driven the appellant towards this drug abuse and his offending. Whatever those influences may have been, I consider that the sentencing judge's assessment of the appellant as "a thoroughly dangerous young man" was well justified.

102. The contention was advanced by counsel for the appellant that the sentencing judge fell into error in ordering that the sentences on counts 1 and 2 were to be served wholly cumulatively. These offences were intimately connected, it was said. They were committed against the same victim and constituted elements of the same criminal enterprise. Accordingly, although some degree of cumulation was required to reflect both the commission of separate offences and the total criminality involved, his Honour fell into error, it was argued, in not incorporating some degree of concurrency in order to achieve a just sentence in the circumstances.

105. There is, in my opinion, much force in this argument. Separate offences with quite distinct elements had been committed and it was incumbent upon the judge to fix a proper sentence for each of them. The criminality involved in each could not, of course, be assessed without some reference to the context within which that particular offence had been committed and both offences were committed in pursuit of the same objective. In such a situation, regard to the surrounding circumstances within which the respective offences were committed is entirely appropriate, but the judge must remain astute to ensure that the individual is not being double-sentenced for the same conduct or sentenced for an offence with which he or she has not been charged. It is through the making of an appropriate order for cumulation in such a case that an effective sentence can be imposed which reflects the overall situation and which provides a further safeguard against the possibility of double-sentencing. In the present case, it is my view that a measure of concurrency was clearly called for on this basis.

108. There are indications in the discussions which took place between the judge and counsel in the course of the plea that his Honour was concerned about the correct approach to adopt with respect to the making of any and what order for cumulation, as the following passage indicates:

"PROSECUTOR: Your Honour, on the point you raised about the approach in sentencing for aggravated burglary, and Your Honour indicated that you had in the past arrived at an appropriate sentence for the aggravated burglary, taking into account all of the surrounding circumstances, and I'd submit that is certainly, with respect, correct. But that then in respect of other charged events that have surrounded that, that Your Honour has recorded a conviction but ordered no further punishment. HIS HONOUR: That is because they have already been taken into account in assessing the sentence for the previous offence. PROSECUTOR: Yes. Well, although there is that overlap, Your Honour, which of course I pointed to in my opening, in my submission it would still be incumbent upon Your Honour to pass an appropriate sentence for every count on the presentment. And to use concurrency where appropriate to reflect the concern Your Honour had to not pass a sentence that in totality was not an appropriate sentence. So, for example, as between Count 2 and Count 1, it's submitted that Count 2 would require a separate sentence, but that there would be every reason for it to be, to quite an extent, concurrent with the sentence on Count 1. That's, in my submission, the way that it should be achieved. HIS HONOUR: I'm not sure that is the better approach, for this reason. Count 2, the charge of intentionally causing injury, must be looked at in the context in which the injury took place, not in isolation. Now, that injury has taken place in the context of a burglary. That has already been taken into account, however, when the burglary is being considered. So, why impose anything else? PROSECUTOR: Well, because it's still an offence in its own right, Your Honour. HIS HONOUR: Of course it is. PROSECUTOR: And it can't be, in my submission, properly dealt with without any sentence being passed on it. In my submission what the Court of Appeal does seem to say is that the proper way to arrive at a sentence is for appropriate sentences to be passed on each count, but for the overall sentence to be governed by the use of concurrency or cumulation where necessary to achieve what in the end is an appropriate sentence. And in my submission that's what should occur here."

Against that background it is difficult to see why his Honour without further discussion or explanation made an order for total cumulation which he had indicated he regarded as inappropriate and which was never sought by the prosecution.

113. However, having made the order for total cumulation with respect to counts 1 and 2, his Honour then directed that only one year of the sentence imposed for the aggravated burglary committed at the home of Miss Atanasovska be served cumulatively upon the sentence so created. I have no doubt that he was concerned to construct what he regarded as an appropriate total effective sentence and, having imposed eight years' imprisonment for the offences involved in the first incident, was unable to reflect properly the quite separate serious criminality involved in the second.

116. I am of opinion that his Honour fell into error with respect to both of these orders and that it is accordingly necessary for this Court to reconsider the exercise of sentencing discretion.

119. In the circumstances ground 1 need not be addressed.

123. With respect to the individual sentences and the total sentence imposed in the court below, the contention was advanced by Mr Tehan in this Court that his Honour, although he specifically adverted to the principles to be applied in the sentencing of young offenders set out by Batt, J.A. and with which Phillips, C.J. and Charles, J.A. agreed in R. v. Mills[1], failed to accord proper practical effect to them and to other factors upon which reliance was placed in the course of the plea. Lower individual sentences and a significantly reduced effective sentence were called for in the circumstances, counsel argued.

126. I find myself unable to accept this submission. The judge in his remarks was conscious of and emphasized the importance of the youth of the appellant as a factor in the determination of an appropriate sentence. Acknowledging that the appellant was a "serious repeat offender", his Honour considered that "for all that, your case is not hopeless". I note that the judge accepted that the appellant indicated the presence of some conscience and feelings of remorse for what he had done. He pointed out that the appellant did seek to tell the police how and where he had left Mr Apinis and that he had telephoned Miss Atanasovska shortly after he left her home. He also took into account in a proper fashion the admissions and pleas of guilty entered by the appellant as well as the programmes that he had undertaken since his arrest. It is evident that his Honour was concerned to have proper regard to any factors which could militate in favour of the mitigation of the penalty to be imposed.

129. 39 Nevertheless, ultimately and in my view quite correctly, he regarded himself as constrained by the circumstances to impose substantial sentences. Addressing the appellant, he emphasized some of the factors which led to that consequence, stating (inter alia):

"You have not hesitated to injure a feeble old man in his own home in order that you might steal from him. And you have not hesitated to threaten a young woman in her own home, with a knife for the purpose of stealing from her and her family, and that, notwithstanding the many opportunities you have been given by the criminal justice system to mend your ways. In my judgment the community has suffered enough at your hands, and specific deterrence, that is, the need to teach you the consequence of re-offending, must loom very large in the sentencing process, as must also the need to protect the community from your depredations. Finally, given your record, general deterrence has a real part to play, if the system of sentencing, of which you have had the benefit for so long, and so consistently abused, is not itself to be brought into disrepute."

I endorse each of those remarks and would add that our criminal justice system would also be brought into disrepute if the courts do not respond sternly to such assaults upon the elderly or vulnerable in our community or in relation to those who invade the homes of others for criminal purposes. It is not to be ignored that Parliament in 1997 made the offence of aggravated burglary punishable by a maximum period of imprisonment for 25 years.

134. I consider that the individual sentences imposed in the court below were appropriate and should be re-imposed. However, as I have earlier indicated, I am of the view that his Honour fell into error with respect to his orders for cumulation.

137. In that situation, I propose that one year of the sentence imposed on count 2 and two years of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1 and upon each other.

140. This would create a total effective sentence of eight years in respect of which I propose that a non-parole period of six years be fixed.

WINNEKE, P.: I agree, and I agree in the proposed orders.

WINNEKE, P.: The formal order of the Court will be -

The sentences imposed below are set aside. In lieu thereof we impose for each count the same term of imprisonment imposed by his Honour, that is -

We direct that two years of the sentence imposed upon count 3 and one year of the sentence imposed upon count 2 be cumulated upon each other and upon the sentence imposed upon count 1. The total effective sentence will therefore be one of eight years. We order that the appellant serve six years before becoming eligible for parole.

We declare that 510 days have already been served pursuant to those sentences. We direct that the fact of that declaration and its details be noted in the records of the Court.