R v McKee & Brooks [2003] VSCA 16

5. Later that night and in the early morning of the following day McKee and Brooks together committed a number of crimes. They first drove to a service station in the stolen car, McKee armed with a hammer and Brooks armed with a knife, their faces covered with scarves or cloth. A young attendant in the store saw the appellants and ran into an office and locked the door. McKee demanded that he open the cash register and threatened to kill him if he did not. She attempted unsuccessfully to open the cash register. The appellants stole packets of cigarettes and escaped in the stolen car. Next, the appellants drove to a mobile phone shop where Brooks broke a side window, entered the store and stole cash from the register. She smashed display cases and then stole some 30 mobile phones and accessories. Soon afterwards the appellants drove to a service station. McKee entered the shop area and spoke to the attendant. She signalled Brooks to enter the shop. Brooks did so, her face covered with a cloth or scarf. McKee then produced a large screwdriver and threatened the attendant. She demanded that the cash register be opened and stole cash and cigarettes.

8. At about midday on 24 September 2001, McKee and Brooks were travelling in the stolen car when it was involved in a minor collision with a van in Braybrook. Both drivers parked their vehicles, and spoke to each other. The driver of the van entered the Braybrook post office. While he was inside, the appellants broke into his van and stole a number of personal belongings including a cheque book. That afternoon McKee cashed two cheques totalling $3,300 at a bank. The cheques were those stolen from the van. While Brooks frankly admitted her crimes to the police, McKee prevaricated and made several false denials.

11. All the offences were committed for the purpose of obtaining money with which to buy heroin or to obtain prescription drugs.

14. The appellants indicated that they would plead guilty before their committal hearings, which proceeded by way of hand-up briefs. On 28 February 2002, the appellants pleaded guilty in the County Court to a presentment charging McKee with three counts of armed robbery, one count of theft and two counts of obtaining property by deception, and charging Brooks with two counts of armed robbery, two counts of burglary and four counts of theft. After hearing pleas on behalf of the appellants, the sentencing judge sentenced McKee to three years' imprisonment on each of the counts of armed robbery, to a term of six months' imprisonment on the count of theft and to a term of six months' imprisonment on each of the counts of obtaining property by deception, which, with a measure of cumulation, produced a total effective sentence of five years and six months' imprisonment. A non-parole period of two years and six months' imprisonment was fixed. Brooks was sentenced to be imprisoned for a term of one year on each of the counts of burglary, to a term of one year on two counts of theft and to a term of six months' imprisonment on two counts of theft, and to three years' imprisonment on the counts of armed robbery. A measure of cumulation was ordered which produced a total effective sentence of five years and six months. A non-parole period of two years and six months' imprisonment was fixed.

17. Both appellants had prior convictions. McKee had previously been convicted of three charges of burglary, four charges of theft and one charge of obtaining property by deception. Brooks had 27 prior convictions, including convictions for burglary, theft and drug offences. It should be noted that neither appellant had a prior conviction for an offence of violence. The armed robberies represented an escalation in their criminal activities. Neither appellant had served a sentence of immediate imprisonment, although both had been given community-based orders and Brooks had received suspended prison sentences. McKee committed the offences, the subject matter of this appeal, while serving a community-based order. Brooks was subject to an uncompleted suspended sentence imposed for offences of dishonesty.

20. The appellants have been granted leave to appeal against their sentences. In the case of McKee, the grounds of appeal are that the sentence was manifestly excessive, that the sentencing judge failed to adequately take into account her limited prior convictions and age and her prospects of rehabilitation and breached the principle of parity and that the head sentence was disproportionate to the appellant's offending. The grounds of appeal in the case of Brooks are:

"1. The learned sentencing judge imposed a sentence that was manifestly excessive in the circumstances; 2. The learned sentencing judge failed to take sufficient account of the appellant's prospects of rehabilitation; 3. The learned sentencing judge failed to take sufficient account of the principles of parity in imposing a sentence upon the appellant; 4. The learned sentencing judge erred in the application of the totality principle by making orders for cumulation which resulted in a head sentence that was disproportionate to the offending in the circumstances; 5. The learned sentencing judge erred in his assessment of the implications of the appellant's heroin addiction for sentencing by: (a) failing to give any or sufficient weight to the impact of the appellant's heroin addiction on her moral culpability;

and (b) giving too much weight to general deterrence. 6. The learned sentencing judge erred in taking into account in sentencing the appellant on counts 2 and 6 damage to windows at premises the subject of the burglaries when no count on the presentment was alleged in respect of that charge."

24. McKee was born in New Zealand and is one of five children. Her parents separated when she was aged two years. Her father was an alcoholic. The appellant left school at the age of 14 or 15 years and lived on the streets from the age of 12 years without parental supervision. She met the father of her two children when she was 14 years old and became pregnant for the first time when she was 17 years old. Her only employment was for a period of 12 or 15 months in a clothing shop and fruit picking. The appellant began using heroin at the age of 20 years. She commenced to smoke heroin, and after a year began injecting it. After the birth of her second child in October 2000, the appellant entered a rehabilitation centre and was able to refrain from using drugs for a period of six or seven months. The appellant's partner has remained supportive of her and is employed. Upon the appellant's release she intends to reside with her partner and her children at the house of her partner's mother. Her counsel conceded that a prison term was appropriate, and when the judge said that "she was looking at a significant period of time over the three armed robberies", counsel responded:

"She is, and she knows it and, sir, I'm not going to go into each of them. They are serious matters."

28. Brooks's parents separated when the appellant was in grade 2. The appellant lived with each parent at different periods. She rebelled against her mother and was closer to her father. She did not live with either parent for any length of time after she reached the age of 14, ascribing that to the fact that she was using heroin. The appellant left school after completing year 9. Until obtaining a cleaning job shortly prior to the commission of these offences, the appellant had obtained only occasional employment. After her arrest the appellant was housed in a drug unit in prison and apparently did not apply for bail in order to complete a drug program in prison. Earlier, the appellant had achieved a period of seven months without using drugs when she lived in Bermagui acting as a housekeeper to a friend.

31. Armed robbery is a serious offence. The maximum sentence is 25 years' imprisonment. General deterrence will usually be an important consideration in sentencing. In the present case, in the course of argument the sentencing judge said:

"I am stuck with the pronouncement of the Full Court in cases such as Williscroft which says people who commit armed robberies to establish their life of crime can expect to receive sentences that reflect general deterrence in overwhelming proportion that pushes personal considerations to a much lower level of importance in other cases. In other words, general deterrence is the overwhelming and guiding principle in sentencing."

The importance of general deterrence, however, is affected by the circumstances attending the commission of the crime and factors personal to the offender. As the Full Court said in R. v. Williscroft[1]:

"General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form, and its contemporary prevalence is the cause of considerable community disquiet."

The sentencing judge in the present case went on to say:

"Now this case is a bit different to the sort of case that Williscroft was dealing with ... "

39. In the present case the armed robberies were amateurish. Against that must be balanced the fact that McKee took part in a robbery in which a gun was brandished, and in other robberies the appellants used a knife, a hammer and a screwdriver. All the robberies were committed against people working in or conducting shops who were likely to be easily intimidated. In my opinion, the sentencing judge properly emphasised the importance of general deterrence in respect of these examples of the crime of armed robbery.

42. The motive for the commission of the crimes was the appellants' need of money with which to buy heroin to feed their addiction. According to the Court of Criminal Appeal in New South Wales it has been "said on countless occasions that addiction to heroin is not to be considered as effective reduction of what would otherwise be an appropriate sentence"[2]. While the existence of an overwhelming physical craving may explain the commission of a crime to obtain money to purchase heroin to still the craving, the courts' refusal to take it into account may be due to the view that the decision to begin to use drugs is said to be voluntary and the commission of crimes to feed an addiction is a likely consequence of that choice. In R. v. Henry[3], Spigelman, C.J. said:

"[S]elf-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice."

46. The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman, C.J. acknowledged[4]. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated[5]. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.

49. In the present case, a forensic psychologist reported to the court that Brooks first experimented with heroin at the age of 13 years and within two years had developed an addiction to the drug. McKee first used heroin when she was 20 years old. The circumstances attending the commission of the offences points to impulse rather than premeditation or careful planning. Since their arrest both appellants have made considerable efforts to end their addiction.

52. In my view, the role which addiction to heroin played in the commission of these crimes is adequately reflected in the sentences and in particular the non-parole period fixed by the sentencing judge.

55. I consider that the effective total sentences and the individual sentences imposed upon the appellants were within the range that was available to the sentencing judge having regard to the gravity of the offending. The sentence imposed for count 11 was stern, but it was still, in my view, not excessive. The sentencing judge fixed a non-parole period which would appear to reflect optimism on his part for the prospects of the appellants' rehabilitation, which largely depend upon their success in ending their addiction to heroin. The age of the appellants, their personal background and attempts at rehabilitation were canvassed by the judge in his sentencing remarks. Both counsel on appeal stressed the importance of rehabilitation. Counsel for Brooks was able to rely upon real progress in the period before the commission of the crimes and exemplary conduct afterwards. McKee, too, displayed potential for reformation. In my opinion, the sentencing judge was mindful of the point and accommodated it by fixing a non-parole period which was otherwise remarkable.

58. 17 As to parity, McKee is three years younger than Brooks and has a less extensive list of prior convictions. She was, however, involved in the crime which I regard as the most serious of the offences, the robbery in which the weapon employed was a firearm. In respect of the offences which the appellants committed together, I do not think the sentencing judge could sensibly distinguish their roles in terms of culpability. It is relevant to note that he was not asked to do so by counsel appearing for the appellants.

61. For the foregoing reasons, I am of the opinion that the sentences imposed upon the appellants were not manifestly excessive and that the sentencing judge did not commit any identifiable error in the course of the process of sentencing the appellants. I may not have imposed sentences of quite the same order as those imposed by the sentencing judge, but that is not the test. The question is rather whether the sentences fell within the range which a reasonable judge could impose having regard to the personal circumstances of the appellants and the facts attending the commission of the offences. In my opinion the sentences in this case met that test.

68. I agree that each of these appeals should be dismissed for the reasons advanced by the learned presiding judge. I specifically wish to express my agreement with the views that he has given concerning the proper approach to be adopted in relation to drug addiction as a sentencing consideration, and I would like to add a few comments of my own.

71. 21 In the course of presenting their respective submissions, counsel for the appellants placed considerable reliance on the fact that both of their clients had developed an addiction to drugs. Each did so at a relatively early age and each almost certainly became so enmeshed in consequence of the deprivation, abuse or disadvantage to which she had been subjected as a young person. I accept that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape. That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes. These would include the assessment of the moral culpability of an offender with respect to the commission of a specific offence and therefore could assume relevance when considering the significance to be attributed to the notion of retribution for wrongdoing as a sentencing consideration. Of course, it does not follow that individuals who come before the court with the type of history to which I have referred do not make choices or that they cannot be held fully accountable for conduct in which they voluntarily engage or which may be the ultimate product of deliberate lifestyle choices made by them. However, and obviously, in the determination of an appropriate sentence in an individual case, regard must be had to the particular circumstances of the offender concerned. As Buchanan, J.A. has pointed out, the background against which an offence was committed could also possess relevance when a sentencing judge came to consider the offender's prospects of rehabilitation. It may indicate the presence of a need to endeavour, through the sentencing process, to protect the public and affect the weight given to specific deterrence in the determination of an appropriate sentence.

74. There is, in my view, nothing in the material before this Court which raises the reasonable possibility that the sentencing judge was not mindful of his obligations in this regard or that he failed to attribute proper weight to the matters advanced in mitigation of penalty in each case. On the contrary, his sentencing remarks and the length of the possible parole period fixed by him powerfully suggest otherwise.

78. For the reasons given by Buchanan, J.A., I agree that the appeals by both appellants should be dismissed.

82. The order of the Court will be that each appeal is dismissed.

[1] [1975] VicRp 27; [1975] V.R. 292 at 299.

[2] R. v. Valentini (1989) 46 A.Crim.R. 23 at 25. See also R. v. Halewyn (1984) 12 A.Crim.R. 202 at 203 per Young, C.J.; R. v. Lawrence (1988) 10 Cr.App.R. (S) 563 at 564 per Simon Brown, J.;

R. v. Spiero (1973) 22 S.A.S.R. 543 at 549 per King, C.J., where similar submissions were made.

[3] [1999] NSWCCA 111; (1999) 46 N.S.W.L.R. 346 at 383.

[4] See also Douglas v. R. (1995) 56 F.C.R. 465 at 470 per von Boussa, Higgins and Nicholson, JJ.

[5] See, for example, R. v. Ma [1999] NSWCCA 257; (1999) 107 A.Crim.R. 252 at 255; R. v. Jarman [2001] N.S.W.C.C.A. 178; R. v. Horne [1999] N.S.W.C.C.A. 391 at [13] per Greg James, J.