R v Mourad [2008] VSCA 4

Court of Appeal (Vic)|2008-01-31|Before: VINCENT, NEAVE and REDLICH JJA

SENTENCE - Re-offending while on parole - Parole not cancelled at the time of sentencing - Subsequent cancellation of parole - s 16(3B) Sentencing Act 1991 - Application of the totality principle - R v Alashkar and Tayar applied - Appeal dismissed.

**1 I invite Redlich JA to deliver the first judgment.

2 On 20 October 2006, the appellant was sentenced by a judge of the County Court to eight years and ten months' imprisonment, with a non-parole period of six years, for 15 counts of armed robbery, one count of attempted armed robbery, three counts of causing injury recklessly, one count of burglary and two counts of theft. All of the offences were committed between 10 December 2005 and 31 December 2005. As the appellant had been released from prison in October 2005, all of the offences were committed whilst the appellant was on parole. As a consequence of the appellant's sentence, the Parole Board cancelled his parole on 13 December 2006, the appellant then owing the Parole Board six months.

3 Having been granted leave to appeal, the appellant now appeals against his sentence on the ground that it is manifestly excessive and infringes the principle of totality. The appellant also relies upon the evidence of the cancellation of the parole order to show that he is now required to serve a sentence of nine years and four months, which, he submits, infringes the principle of totality.

4 A summary of the offences to which the appellant pleaded guilty is conveniently set out in the sentencing remarks of the learned sentencing judge.**

Counts 1 and 2, on 10 December 2005, at the completion of a journey in a taxi, you produced a knife and robbed the taxi driver of $130 and his mobile telephone. In the course of a struggle, the driver was cut on both hands.

Counts 3 and 4, on 13 December 2005 with another man, you broke into a house in Sydney Road, Coburg North and stole two electric razors and two hand held telephones.

Count 5, on 14 December 2005, you produced a knife to the attendant in a service station in Coburg and robbed $700 from the cash register.

Count 6, on 16 December 2005, after being shown a gold necklace and bracelet set in a jewellery store in Brunswick, you stole the jewellery by running with it from the store.

Count 7, on 16 December 2005, you produced a knife to the salesman at the Better Bookshop in Swanston Street, Melbourne and robbed the store of $300. A degree of planning was demonstrated in this robbery as you had visited the shop an hour and a half before carrying out the robbery. You behaved aggressively towards the salesman. After emptying the till, you directed him [in] a threatening fashion to move to the rear of the shop.

Count 8, on 17 December 2005, you produced a knife to the attendant at a service station in Fawkner and robbed him of a mobile telephone.

Count 9, on 18 December 2005, you robbed a 7-Eleven store in the central business district at knifepoint jumping the counter and taking money from the cash register.

Count 10, on 19 December 2005, you robbed an attendant at a Coles Express store in Carlton of three rings which she was wearing and of money from the cash register. This robbery occurred before six o'clock in the morning when the sales person was mopping the floor. She was 26 years of age. After taking money from the register and forcing her to open cupboards in a search for cigarettes, you directed her to go to the rear of the shop to the storeroom where you robbed her of the three rings she was wearing. There were times when you had the knife pressed against her side. She was very frightened; indeed all of your victims were frightened.

Counts 11, 12 and 13, on the same day, 19 December 2005, you robbed a jewellery store in Brunswick of a gold bracelet and gold earrings. This robbery was carried out at knifepoint. The jewellery was taken by an accomplice. You had confronted the owner of the shop with a knife pointing it at him and leading him with your other hand to the back room. Although he said he was very frightened, he broke free and in pursuing your accomplice, he fell. He suffered grazes and bruising. A female customer in the shop grabbed your jacket and hand and was either pushed or fell to the ground. She suffered bruising to her leg and head.

Count 14, on 23 December 2005, you robbed another 7-Eleven store in Elizabeth Street, Melbourne of money at knifepoint.

Count 15, on 24 December 2005, you robbed a taxi driver at the Batman Railway Station of his takings of approximately $400 after producing the knife and pointing it at his stomach.

Count 16, on 24 December 2005, you attempted to rob a Foodworks store in Carlton North by pulling a knife on the person at the cash register and demanding money. The sales person closed the cash register and refused your aggressive and abusive demands and you fled when told police were being called.

Count 17, on 24 December 2005, you robbed the Organic Wholefood store in Lygon Street, Brunswick East at knifepoint taking cash from the cash register. The sales person was a 15 year old boy. You pointed the knife at his stomach and demanded he open the till. Initially he was unable to open the cash register because of shock but managed to do so and you took money from it.

Count 18, on 27 December 2005, you robbed a service station in Coburg at knifepoint taking money from the cash register.

Count 19, on 29 December 2005, you robbed a 7-Eleven store in North Melbourne producing a knife and taking money from the cash register.

Count 20, on 30 December 2005, you robbed a 7-Eleven store in Sydney Road, Coburg producing a knife and taking money from the cash register.

Count 21, on 31 December 2005, you robbed the Caltex Service Station at the corner of Lygon Street and Blyth Street in Brunswick producing a knife and taking money and cigarettes.

Count 22, on 31 December 2005, you robbed a Caltex Service Station at the corner of the Hume Highway and Barry Road, Campbellfield producing a knife, jumping the counter and taking money from the cash register.

**5 On each of the 15 counts of armed robbery the appellant was sentenced to three years' imprisonment, whilst on the one count of attempted armed robbery he was sentenced to two years' imprisonment. On the three counts of causing injury recklessly, the appellant was sentenced on one to nine months' imprisonment and on the other two counts to six months' imprisonment. On each of the counts of burglary and theft the appellant was sentenced to six months. His Honour made moderate orders of cumulation on each of the counts, treating the first count of armed robbery as the base sentence.

6 At the time of sentence the appellant was 40. He had 81 previous convictions between November 1986 and November 2004. Whilst some were of a minor nature, he had prior convictions for burglary, robbery, armed robbery, intentionally causing injury, making a threat to kill, using and trafficking in heroin and cannabis, and numerous offences of theft. The learned sentencing judge described it as a serious criminal record covering two decades of the appellant's adult life.

7 The offences committed were described by his Honour as a concentrated campaign of criminal conduct, and it was plain that heroin addiction provided the underlying motive for their commission. As the sentencing judge observed, the use of illegal drugs had seriously marred the appellant's life. By the time the appellant was in his late twenties, he had a daily heroin habit. This inevitably intruded on his capacity to maintain any continuous employment or to maintain relationships. The sentencing judge rightly had only limited regard to such addiction in the sentencing process.[1]

8 It was not in issue that each of the many offences committed by the appellant was serious. In almost all cases, the victim was a person working alone and in circumstances of vulnerability. In the case of all of the armed robberies and the attempted armed robbery, the appellant produced a frightening silver-bladed knife which was calculated to instil a real fear into the victims. Given the prevalence of offences of this nature, it was appropriate that the sentencing judge attach considerable weight to the objective of general deterrence. Amongst the appellant's many prior convictions were convictions for similar offences to those upon which he fell to be sentenced. In those circumstances, the learned sentencing judge was obliged to give weight to specific deterrence.

9 The learned sentencing judge found that there were indications that the appellant had some prospect of rehabilitation. He was satisfied that the appellant was remorseful for his conduct and had a genuine desire to reform. The appellant had undergone a painful period of withdrawal from heroin following his arrest and had not used drugs since then.

10 Counsel for the appellant advanced no oral argument in furtherance of the ground that the sentences were manifestly excessive. I am not persuaded, despite the mitigating factors relied upon, that any of the individual sentences could be so described. As the offences were discrete offences involving separate victims at different premises, it was appropriate that the sentencing judge make directions for partial cumulation of the individual sentences of imprisonment. None of the directions for partial cumulation could be described as manifestly excessive. Indeed his Honour in his carefully considered sentencing structure made moderate orders for cumulation to ensure that the head sentence was not crushing and did not offend the principle of totality. This was in accordance with the approach set out in the often cited judgment of Ormiston JA in Director of Public Prosecutions v Grabovac.[2] Having regard to the number of serious offences committed by the appellant, the total effective sentence could not be described as manifestly excessive. In my view, it was plainly within the range of sentences which were open to the learned sentencing judge.

11 The primary oral argument advanced on behalf of the appellant was that as a consequence of the appellant's liability to serve six months' imprisonment by way of the additional parole term, in addition to the sentence imposed by the learned sentencing judge, the total sentence which the appellant was required to serve infringed the totality principle.

12 Counsel for the respondent referred to the fact that the appellant's convictions in 2003 and 2004 had both resulted in his parole being cancelled, a fact which did not pass unnoticed by the learned sentencing judge. Counsel for the respondent submitted that it was inevitable that the appellant's parole would be cancelled on this occasion, but that prospect was rightly ignored by the sentencing judge. As explained in R v Piacentino and Ahmad,[3] as a matter of law the sentencing judge was not permitted to take into account the possibility that the Parole Board may thereafter cancel the appellant's parole and require the parole term to be served.

13 The evidence of the cancellation of the parole subsequent to the sentencing of the appellant was admissible in this Court on the appeal against that sentence.[4] Counsel advanced no argument concerning the operation and effect of s 16(3B) of the Sentencing Act 1991 which provides that where an offender commits an offence whilst released into the community on parole, that sentence should be cumulative upon any other sentence imposed unless there are exceptional circumstances.[5] It was implicit in the appellant's contention that no exceptional circumstances existed. As a consequence, the sentence to be served following the cancellation of parole would be cumulative upon a sentence already imposed upon the appellant.**

**14 Upon this Court receiving the evidence of the revocation of the appellant's parole and the additional period of custody which the appellant must serve, the interests of justice require that the principle of totality be applied to the entirety of the sentence which the appellant must now serve.[6] That is not to say that the Court must intervene or impose a different sentence because the parole term has been enlivened and added to the sentence the subject of the appeal.[7]

15 The Court is now required to evaluate the overall criminality involved in all of the offences for which the appellant is undergoing sentence to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed, which includes the sentence being served as a consequence of his breach of parole.[8] This Court must, however, ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B).[9] Thus, while preserving the principle of cumulation enunciated in s 16(3B), the total sentence which the appellant is required to serve might be moderated[10] so that the aggregate of sentences imposed by reason of such cumulation is not greater than any sentence required to fulfil the totality principle.[11]

16 Thus, the principal question to be determined in the exercise of our discretion is whether in all of the circumstances the total period of nine years and four months to be served by the appellant breaches the principle of totality. In determining whether the sentence offends the principle of totality and is manifestly excessive, I have taken into account the matters urged on the appellant's behalf, and in particular the significance of the appellant's confession to most of the offences, the fact that the offences occurred over a limited period and were committed because the appellant was heavily addicted to heroin, the risk that the appellant would become institutionalised as a consequence of the sentence imposed, the fact that the appellant has remained drug free on remand, has family support and prospects of employment on release, and the fact that the appellant's parents, to whom he was close, suffer from declining health. Taking into account the intention of s 16(3B) and the length of the parole sentence, I am not persuaded that the term of imprisonment which the appellant is now required to serve can be said to be an unjust or inappropriate measure of the total criminality involved. That is to say, the sentence of nine years and four months' imprisonment cannot in all of the circumstances be described as manifestly excessive. I would therefore dismiss the appeal.

19 The order of the Court is that this appeal is dismissed.**

[1] R v Ross [2001] VSCA 223, [17] (Callaway JA); R v Djeri [2006] VSCA 195, [13] (Nettle JA); R v Howell [2007] VSCA 119, [19] (Nettle JA).

[4] R v Alashkar and Tayar [2007] VSCA 182, [12]; R v Riem [2007] VSCA 283, [36].

[5] R v Alashkar and Tayar [2007] VSCA 182, [40].

[6] R v Alashkar and Tayar [2007] VSCA 182, [10]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308.

[7] R v Alashkar and Tayar [2007] VSCA 182, [40]; R v Scholes [2007] VSCA 303.

[8] R v Alashkar and Tayar [2007] VSCA 182, [38].

[9] See the observations in the joint judgment of McHugh, Gummow and Hayne JJ in relation to s 16(3A) of the Sentencing Act 1991 in RHMcL v The Queen [2000] HCA 46; (2000) 203 CLR 452, 477 [76].

[10] R v Piacentino and Ahmad [2007] VSCA 49; (2007) 15 VR 501, [63] (Eames JA with whom other members of the Court agreed).

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