R v McNamara [2006] VSCA 267

1. The sentence is manifestly excessive in respect of both the total effective sentence and the non-parole period;

2. The learned sentencing judge erred in ordering the degree of cumulation he did; and

3. The learned sentencing judge erred in failing to take the role of the appellant's psychiatric condition in his offending sufficiently into account.

4 The three offences committed by the appellant occurred within the space of an hour. The incident giving rise to count 1 occurred at around 5pm on 25 January 2005. The appellant entered a women's accessory shop in Little Lonsdale Street, went behind the counter and demanded that the shop assistant open the till. The appellant repeated this demand with a raised voice, holding two fingers to the head of the assistant as if he were holding a gun. The assistant complied with his demand. As he took $335 from the till, he yelled at the assistant "don't go, don't go anywhere."

5 About 15 minutes later the appellant entered another store in Bourke Street. One of the shop assistants approached him and asked him to move. The appellant stumbled backwards on the stairs and said "I'm a bit drunk". He then walked to the counter, threatened the shop assistant with a syringe he had pulled from his pocket and said "open the till, give me the money" and "this is an armed robbery". When one of the shop assistants ran out of the shop and called for help the appellant fled without obtaining any money from the till. This conduct constituted the attempted armed robbery (count 2).

6 At around 6pm the appellant entered a restaurant on Brunswick Street, Fitzroy. He appeared to be affected by alcohol. He attempted to enter the bar area and the waitress on duty, Ms Montalti, told him he wasn't allowed there. The appellant then pulled out the syringe and threatened Ms Montalti with it, demanding that she "open the register and open the till." The waitress did so and the appellant demanded that she hand him the notes and all of the $2 coins. He then demanded Ms Montalti's bag. When she said she did not have one the appellant walked towards her with the syringe held up, threatening her. Ms Montalti then said her bag was in the back, and as she moved to the back of the restaurant the appellant chased her. She screamed, and got the attention of the chef, who chased the appellant out of the restaurant. The appellant stole around $270. This incident constituted count 3.

7 Under ground 2 it was submitted for the appellant that as the offences were committed over a very short time frame, a shorter period of cumulation should have been ordered in respect to counts 1 and 2 so as to reflect that short time frame and the fact that they were similar offences. I am unable to agree that there was any discernible error in the orders for cumulation made by his Honour. The appellant had engaged in three separate and discrete criminal acts against different persons in different places. These are not circumstances where the acts giving rise to the discrete convictions were so closely related and interdependent that they could reasonably be said to arise out of the one transaction calling for an order for concurrency. Neither could it be said that this was a case in which the sentencing judge should have refrained from directing cumulation to avoid a crushing sentence or one which offended against the principle of totality. Counsel for the appellant, correctly in my view, did not submit that orders for total concurrency were appropriate. In my view, these offences were each of such gravity that some degree of cumulation was called for.[1]

8 Counsel for the appellant argued grounds 1 and 3 together. It was submitted that the learned sentencing judge had failed to give sufficient weight to the "variety of debilitating psychiatric conditions" suffered by the appellant. On the plea a report from a clinical psychologist, Mr Healey, a forensic psychiatrist, Dr Jager and a brief report from the Director of Medical Services at St Vincent's Personal Health Service were tendered. It is useful to refer to his Honour's summary of the content of those reports which was in these terms:

"According to Dr Jager you have an antisocial personality disorder going back to the time when you were some ten years of age which he said is not amenable to treatment. This is coupled with a dependence on drugs which is also of longstanding and involves alcohol, marijuana, amphetamines, heroin, LSD, solvents and ecstasy. He says that it is unlikely that you will choose to cease using these substances. He does not believe, unlike Dr Tuck, that you suffer from schizophrenia but more from bipolar disorder which is amenable to treatment with lithium. He notes Mr Healey's findings that you are of borderline IQ with a rating of 78. Dr Jager is of the view that with the exception of the bipolar disorder, he has no confidence in the capacity of psychiatric treatment to significantly alter your behaviour. He said that the various problems that you have result in a tendency for you to act impulsively without thought to the consequences of your actions. Unfortunately and even tragically your prospects for rehabilitation, despite your relative youth, are virtually nil."

9 It was not submitted on the plea or before this Court that the appellant's psychiatric condition was the cause of his offending or that the principles in R v Tsiaras[2] are engaged. Nevertheless it was submitted on the appellant's behalf that his Honour ought to have given more weight to the appellant's psychiatric condition and low level of intellect as a factor in sentencing. It was further submitted that his Honour had not given sufficient weight to the fact that the appellant had not taken his medication for a period of two to three months prior to his offending conduct. His Honour was satisfied that the appellant was under the influence of alcohol and drugs at the time of the commission of these offences. His Honour referred to the fact that he had been told on the plea that the appellant had not been taking his medication at the time of these offences, but made no finding to that effect.

10 As the complaint is that the sentencing judge failed to give due weight to these factors, this Court "must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error."[3] The complaint is not made out. Each of these factors was referred to in his Honour's reasons, and he was not bound to give them greater weight than he did.

11 To support the contention that the total effective sentence and non-parole period were manifestly excessive, counsel for the appellant relied upon the appellant's psychiatric conditions, his low level of intellect, the short period of time over which the offences were committed, the fact that the appellant was intoxicated at the time of his offending, the differing degrees of criminality in respect to each offence and the appellant's early plea of guilty.

12 In addition to the matters which I have already mentioned the sentencing judge adverted to the appellant's early plea of guilty as constituting evidence of the appellant's remorse. His Honour referred to the saving of court time and community expense and the fact that the appellant's victims would not have to face the further trauma of court proceedings as a consequence of his plea.

13 The primary submission made on the appellant's behalf was that the period of time which the appellant had been ordered to serve before becoming eligible for parole was too long as it was desirable that the appellant be given a long period of supervision when released back into the community. It was submitted that the non-parole period was unusual and inappropriate, and that no sufficient reason had been proffered why a parole period was not fixed which would offer the appellant adequate prospects for rehabilitation under supervision. In substance, what was urged was that a shorter non-parole period would have resulted in the appellant being amenable to a longer period of supervision and counselling during which he could have received medication and appropriate guidance.

14 The relationship between the head sentence and the non-parole period, the purposes of the non-parole period in demarcating the minimum period that must be served in custody, and the length of terms of parole supervision under a sentence were recently considered in R v M Tran and V N Tran[4] where it was said:

"As the benefit of the minimum term is for the purpose of the offender's rehabilitation the sentencing judge's assessment of the offender's prospects of rehabilitation will have a significant bearing on the minimum term to be fixed. In fixing that term, the interests of the community, which the imprisonment of offenders is designed to serve must be taken into account. ... General and specific deterrence are important objectives which must not be undermined by an unduly short non-parole period. The objective gravity of the offence and the need for general deterrence together with the circumstances personal to the offender are factors which all operate to confine an appropriate range for the exercise of the discretion as to the minimum time which an offender must serve in custody."[5]

15 The prevalence of armed robbery committed by relatively youthful offenders who are addicted to drugs and who steal to finance their addiction is well recognised.[6] Armed robbers affected by drugs are unpredictable and have the potential to injure or kill a victim should things go wrong. One community interest which bears upon both the head and minimum sentence to be fixed is the need of the community to be protected from a violent offender, "especially one whose prospects for rehabilitation are bleak".[7] In such circumstances, protection of the community and deterrence, both specific and general, are very important in the sentencing process.[8]

16 An exceptionally long minimum term would invite attention as to whether the period fixed was justified and whether due regard has been given to mitigating factors.[9] The appellant's non-parole period is slightly in excess of three-quarters of the head sentence. Though the non-parole period is unusual that does not in itself entail error.[10] Though one would ordinarily expect reasons to be given for such a course, a mere failure to do so does not inevitably bespeak error.[11] As Batt JA observed in R v VZ[12] a sentencing judge is not bound to give reasons for imposing an unusually lengthy non-parole period and in many instances it would be obvious why a period beyond the usual range, broadly defined, was selected. This is such a case.

17 His Honour described the appellant as having an appalling record over a comparatively short time. The appellant had 129 previous convictions from 30 court appearances and had been sentenced to numerous terms of imprisonment between 1995 and the date of his sentence for the present offences. Those prior convictions included convictions for assault with intent to rob, burglary, causing serious injury recklessly, aggravated burglary, robbery, armed robbery and numerous drug and alcohol related offences. While a serious criminal history does not necessarily call for the imposition of more severe sanctions it will ordinarily impact upon the sentencing process as indicating "the offender's moral culpability, his prospects of rehabilitation, his dangerous propensity and the community's need for protection and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence."[13]

18 The appellant's conduct in committing these offences was very serious. In each case the appellant confronted a young and vulnerable female victim at her place of employment. On two of those occasions the appellant threatened the victim with a syringe with the intention of terrifying his victims. The seriousness of this form of modus operandi was the subject of recent consideration by this Court in DPP v Spiteri.[14]

19 A psychiatric condition is not necessarily to be considered solely as a mitigatory factor. It may also mean that the offender poses a greater danger to the community.[15] The learned sentencing judge noted that the appellant had an antisocial personality disorder which was not amenable to treatment. The medical evidence led his Honour to conclude that, although his bipolar disorder might be improved with treatment, there could be no confidence that psychiatric treatment would significantly alter the appellant's impulsive behaviour or that he was likely to choose to cease using drugs of dependence. No challenge could be made to his Honour's conclusion that the appellant had virtually no prospects for rehabilitation despite his relative youth.

20 Because of the seriousness of these offences and because the appellant's prospects for rehabilitation were negligible, little scope for leniency could arise.[16] As a consequence it was open to the learned sentencing judge, as he determined, to give particular weight to both specific and general deterrence. The considerations to which his Honour referred provide a sufficient and plain explanation as to why his Honour fixed an unusually lengthy non-parole period. Having regard to the serious nature of the offences and the appellant's personal circumstances, it cannot be said that it was not open to the sentencing judge to follow the course that he did.

21 I would dismiss the appeal against sentence.

[1] R v O'Rourke [1997] 1 VR 246 at 253 per Winneke P, Brooking and Callaway JJA.

[2] [1996] VicRp 26; [1996] 1 VR 398.

[3] R v Bernath [1997] 1 VR 271 at 277 per Callaway JA.

[4] [2006] VSCA 222.

[5] At [29].

[6] R v Nguyen and Okobagerish [2002] VSCA 130 per O'Bryan AJA, with whom Batt JA agreed.

[7] Attorney-General v Morgan and Morgan (1980) 7 A Crim R 146; Bugmy, at 531-2.

[8] R v Nguyen and Okobagerish, at [36].

[9] R v Ung [2002] VSCA 101 at [40] per Callaway JA.

[10] R v Nguyen and Tran, [1998] 4 VR 394 at 413; R v Bernath [1997] 1 VR 271 at 276; R v VZ (1998) 7 VR 593 at [13]; R v Nguyen and Okobagerish [2002] VSCA 130 at [6].

[11] R v Bernath at 278; DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85 at [43] per Callaway JA; at [78] per Chernov JA.

[12] At [13].

[13] R v O'Brien and Gloucester [1997] 2 VR 714 at 718 per Charles JA, with whom Winneke P and Southwell AJA agreed.

[14] [2006] VSCA 214.

[15] R v Engert (1995) 84 A Crim R 67 at 670, 70-71 per Gleeson CJ; R v Bux [2002] VSCA 126; (2002) 132 A Crim R 395 at 402-404 at [33]-[40]; R v Izzard [2003] VSCA 152; (2003) 7 VR 480 at [15] per Callaway JA; R v Ahmed [2005] VSCA 279 at [19] per Charles JA.

[16] R v Nguyen and Akobagerish [2002] VSCA 130 at [46] per O'Bryan AJA; R v Ghareeb [2003] VSCA 111 at [23] per Eames JA.