R v Nguyen and Okobagerish [2002] VSCA 130

Court of Appeal (Vic)|2002-08-21|Before: BATT and EAMES, JJ.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Sentencing - Multiple offences of armed robbery, attempted armed robbery and theft by "youthful offenders" - Whether sentences manifestly excessive, individually, in totality and in minimum term - Whether sentence imposed on a co-offender of the principal offender was disparate from sentence imposed on the other appellant.

I agree with O'Bryan, A.J.A. I add comments of my own only on the question of the non-parole period fixed for the appellant Okobagerish, the one aspect of these appeals which has caused me difficulty. The concession made on behalf of the respondent is a significant matter, though it cannot, of course, be decisive. Further, rehabilitation of a youthful offender is a particularly important sentencing purpose. In the end, however, I have come to the conclusion that, having regard to this appellant's rather unencouraging prospects, the only reduction in the non-parole period that could be justified would amount to no more than "tinkering" with the sentence and that means that the non-parole period is not, in my view, manifestly excessive.

I have had the advantage of reading the reasons of O'Bryan, A.J.A. and, substantially for the reasons his Honour expressed, I agree with his Honour's conclusion as to the outcome of the appeal by Vu Hoang Nguyen. There are, however, some issues dealt with in his Honour's reasons with respect to the appeal of Nguyen on which I desire to make further comment. As to the appeal by Natnal Okogaberish I respectfully do not agree as to the outcome proposed by O'Bryan, A.J.A. As mine is a minority opinion I will confine what I say about these appeals, and I will consider the appeal of Okobagerish first.

The offences committed by Okobagerish were extremely serious examples of a type of armed robbery that is very prevalent and causes justifiable community concern. For substantially the reasons given by O'Bryan, A.J.A, I agree that the sentences imposed on Okobagerish on each offence, and the orders as to cumulation, were appropriate and should not be varied. Thus, the total effective sentence of 8 years and 2 months should stand. My area of disagreement relates to the non-parole period of 6 years which the learned sentencing judge fixed.

One, but by no means the only, consideration in fixing a non-parole period is

the mitigation of punishment of the offender, in favour of his rehabilitation, by his conditional release at the earliest appropriate time, having regard to the circumstances of the case[1]. It is not merely the prisoner's own interest as to his rehabilitation which is relevant to the fixing of the non-parole period; there is a considerable community interest in achieving rehabilitation of offenders, especially young offenders[2]. The fixing of a non-parole period also has a penal element[3]. In a case where principles of general and specific deterrence are important, as clearly was the case here, an unduly short non-parole period should not be fixed which might undermine those principles[4].

In the Okobagerish appeal, counsel for the respondent conceded that the non-parole period which was fixed was manifestly excessive. The concession made on behalf of the Director of Public Prosecutions does not, of course, oblige this Court to agree with that assessment or to conclude that the non-parole period should be reduced. The concession made on behalf of the Director of Public Prosecutions does, however, provide confirmation of my own view that the non-parole period that was fixed is unusually high, having regard to the youth of the appellant. He was only eighteen years of age at the time of the offences. The non-parole period, here, is three quarters of the head sentence[5], which would have to be regarded as being a long non-parole period, at the top or close to the top of the range within which normal periods were ordinarily set[6].

Where an unusually high non-parole period is fixed one would normally expect to see in the reasons of the sentencing judge an explanation for that order. It is not necessarily evidence of error that such reasons do not appear[7] but it does invite scrutiny[8] as to whether error has occurred. In this case counsel for Okobagerish accepted that a significant head sentence was bound to be imposed, but strongly urged that his Honour balance that with a non-parole period which encouraged the appellant to adopt a positive approach to rehabilitation. Significantly, the prosecutor, in response, said that he could not argue with the proposition that as a young offender serving his first sentence of imprisonment there should be "a significant difference between the head sentence and the non-parole period".

It is important to keep in mind in this case that, as the Court emphasised in Chan[9], the fixing of a non-parole period does not determine the date on which the offender will be released upon parole, but fixes the date at which the Parole Board may itself decide that he should be released on parole. That distinction is important in the present case. If the applicant were at the time of his first eligibility for parole to display to the Parole Board the same truculence, and to maintain the posture of disinterest in rehabilitation, which he presented to the psychologist, Mr Joblin, then his prospects of release might be diminished. Mr Joblin did not, however, take at face value the attitude adopted by Okobagerish in his interview. Whilst the signs for rehabilitation were not good, Mr Joblin suspected that the attitude which the appellant adopted was largely a pose. It could well be that the attitude adopted by the appellant was a manifestation of both youth and alienation (and perhaps, bravado, masking fear, at his imprisonment, for the first time).

The background of Okobagerish does offer some explanation for his present situation, above and beyond determined criminality. He was born in Eritrea as one of a number of siblings and his family were forced by warfare in Eritrea to move to the Sudan. His father died in the Sudan when the appellant was about seven years old. The remaining members of the family came to Australia (I presume as refugees, although it was never disclosed) in 1992. The appellant arrived in Australia as a dark skinned Arabic and Eritrean-speaking child of about eight or nine years of age. He learned English and attended four years of High School. Mr Joblin said that the appellant had felt alienated and disoriented in Australia, and sought the approbation of a group with whom he had an identity, but who were themselves drug users. His own heroin use started from the age of about 15 and continued unabated, and his habit was extremely serious at the time of these offences. He is now drug free.

Mr Joblin said that he had written his report in deliberately negative terms, by implication his intention must have been to shake the appellant out of his pretence of disinterest in his future and disdain for his offending. The appellant said that he was "born to live in jail". When he was interviewed by Mr Joblin his relationship with his mother and siblings was non-existent. He had then been in custody for some four months and had not a single visitor nor made a single phone call. Even after he presented in such a negative light Mr Joblin reported that he did not accept that the appellant had no conscience about his offending, his history or himself.

When he came to give evidence, Mr Joblin was able to comment on what appeared to be some recent and positive developments. The mother and sister of the appellant had made telephone contact with him, and his eldest brother had indicated a willingness to visit him in prison. Importantly, perhaps, the applicant himself had expressed a keenness to make contact with his family. The learned sentencing judge was told of the extensive efforts the family had made to try to encourage the appellant to overcome his drug addiction. No doubt his failure to positively respond to their efforts had further alienated him from his family. These small signs of reconciliation were nonetheless positive signs for future rehabilitation. In addition, the appellant had obtained his first ever job, as a kitchen-hand, albeit as a prisoner.

The community would not want the courts, too readily, to give up on the prospects of rehabilitation of such a young person, especially where there are both circumstances in his background which might explain the alienation he manifests and some, albeit modest, signs offering hope for his rehabilitation. In my view, in such circumstances the prospects of rehabilitation ought to be encouraged, even when the young person concerned seems determined to deny himself the opportunity.

In my opinion, the non-parole period fixed in the case of Okobagerish was manifestly excessive and should be reduced. Given that mine is a minority view, in that respect, it is unnecessary, and undesirable, that I say anything further as to that order.

The learned sentencing judge also made an order under s.89(4) of the Sentencing Act 1991, cancelling all licences held by Okobagerish and disqualifying him from holding a driver's licence for a period of six years. Although complaint was made as to that order in the outline of argument, the issue was not discussed during the hearing before us. The section imposes an obligation to cancel a licence where a conviction has been entered for stealing a motor vehicle, but the question of the length of any period of disqualification is at the discretion of the judge. Given that the offender has been sentenced to a period of imprisonment there must be a real question of the utility of such an order when it is imposed for the same period. There would be good reason why the period of disqualification might not, in any event, be extended beyond the period when the prisoner might be released. In fixing a period of disqualification one relevant factor is the prospects for rehabilitation of the offender[10], and the lack of a licence upon release could prejudice the person's prospects of gaining employment.

In my view, if the non-parole period was to be reduced (as I have concluded was appropriate) then it would also be appropriate to reduce the period of licence disqualification. Given that the length of any such reduction was not argued before us, and that I am in the minority as to this issue, I simply observe that, in my view, it would have been appropriate to reduce the disqualification period, at least, to coincide with the length of the reduced non-parole period.

With respect to the appeal of Nguyen, I agree, in the main, with the reasons of O'Bryan, A.J.A, and the outcome he proposes. The sentencing judge concluded that the sentence imposed, by another judge, on the offender McRory was manifestly inadequate, and thus did not require any amelioration of the sentence he proposed for Nguyen by reference to the question of parity. No question of parity strictly applied in the case of Nguyen, because McRory was a co-offender with Okobagerish, not with Nguyen. For that reason his Honour was not bound to have regard to parity as between McRory and Nguyen and no complaint by Nguyen on grounds of parity could succeed.

It may be that had parity been a relevant issue his Honour was entitled to conclude that the sentence of McRory was manifestly inadequate. As the cases cited by O'Bryan, A.J.A. demonstrate, once that conclusion is appropriately reached modification of an otherwise appropriate sentence on grounds of parity was not necessary, save to the extent that it was appropriate to do so in order to assuage a feeling of injustice held by the offender who had received the heavier sentence.[11]

Whilst it may be contended that the sentence of McRory was manifestly inadequate, as the judge in this case concluded, I am not prepared to draw that conclusion, myself, on the information available to us. The learned sentencing judge had the same material which is available to us, namely the transcript of the plea hearing in McRory's case. That material discloses that a report of a psychologist was tendered, but neither we nor the sentencing judge saw that material. McRory was in custody in a Youth Training Centre. If he was sentenced to imprisonment he would be transferred to an adult prison. The manager of the Melbourne Juvenile Justice Centre gave evidence before the judge in McRory's case. It was apparent that considerable thought had been given to the sentencing options for McRory. Central to that witness's evidence was his opinion that McRory was in danger, at the age of 19, of being institutionalised, but had shown real signs of reformation (which he detailed). The opportunity to move to New Zealand was offered by McRory's brother and the witness urged that it be taken up.

In my view, there may have been a valid discretionary basis for the sentence imposed on McRory. Neither the judge in the present case, nor the judges of this Court, have seen the sentencing reasons which were presumably delivered in the case of McRory. In all the circumstances, I am not prepared to conclude that the sentence which was imposed in that case was a "totally inappropriate and dangerous sentence", as the judge below characterised it.

As I have said, I agree with the orders proposed by O'Bryan, A.J.A. in Nguyen's appeal. That means that both his head sentence and non-parole period should be reduced by two months. An order of licence disqualification was also made in Nguyen's case under s.89(4). In his case, the period was four years, although the non-parole period which had been fixed was only two years and six months. The judge offered no explanation for fixing that period of disqualification. The effective head sentence was four years and two months.

There is no ground of appeal from Nguyen expressly attacking the disqualification order, nor was it referred to in submissions. The whole sentence is, however, attacked as being manifestly excessive and the definition of "sentence" in s.566 of the Crimes Act 1958 is wide enough to include an order under s.89(4). I therefore deal with the matter as though it has been the subject of appeal.

I am conscious that neither counsel for the appellant nor for the respondent dealt with this matter, but in my view it would be quite appropriate that what seems to me to be a manifestly insupportable order should be corrected. This is, indeed, an instance where a claim of manifest excess does not admit of any argument.

In my view, the order of disqualification of any licence, in the case of Nguyen, should be reduced to the period of two years four months, to coincide with the non-parole period which will now be imposed.

During a period of 30 days early in 2001 the appellant Okobagerish, either alone, or with co-offenders, committed eighteen armed robberies and four attempted armed robberies in suburban Melbourne on convenience stores, night garages or newsagencies. The weapon used for each armed robbery and attempted armed robbery was a knife. Four motor vehicles were stolen by Okobagerish for use in the armed robberies. At the conclusion of this criminal spree Okobagerish was arrested by police and interviewed. He freely admitted his participation in all the offences and stated he committed the armed robberies to support a heroin habit. He was almost eighteen-and-a-half years of age. Asked by the police at the end of the interview: "Do you have anything you wish to say to all the victims who have been traumatised by the events that you have caused", he replied, "Nuh", which I interpret as no. Not surprisingly, when Okobagerish was sentenced, no reference was made to remorse for none had been demonstrated.

Pertinently, during the sentencing process, the sentencing judge commented:

"Armed robbery is a particularly serious crime. Armed robberies by the drug addicted, usually armed with a knife or fluid-filled syringe, upon convenience stores late at night when those stores are controlled by a single attendant, are particularly prevalent in today's society. Those who perpetrate such crimes must expect to receive condign punishment from this court. Parliament has recognised the seriousness of such crimes with a maximum penalty of 25 years' imprisonment for armed robbery and 20 years for attempted armed robbery."

The appellant Nguyen was a co-offender of Okobagerish on 13 February 2001, committing two armed robberies and one attempted armed robbery on a newsagency, a service station and a post office. A motor vehicle was stolen and used in the robberies. The weapon used by Nguyen was a large-bladed black-handled kitchen-type knife which Okobagerish had provided to him. When Nguyen was arrested by police on 13 February 2001 he had in his pocket a bottle containing a drug of dependence, namely Temazepam which had been dispensed at a pharmacy under the name Okobagerish. During a police interview Nguyen stated that he became involved with Okobagerish on a promise he would be given heroin in exchange for help in the armed robberies. He freely admitted his role in the offences. At the time of his arrest Nguyen was 19 years of age.

The appellant, Nguyen, who is now aged 20 years pleaded guilty to one count of theft (count 1), one count of attempted armed robbery (count 2), two counts of armed robbery (counts 3 and 4) and one count of possession of a drug of dependence (count 5). On count 1 he was sentenced to be imprisoned for 12 months; on count 2 to be imprisoned for two-and-a-half years, on counts 3 and 4 to be imprisoned for three-and-a-half years and on count 5 to be imprisoned for six months. An order was made that two months of counts 1, 2, 4 and 5 be cumulative with each other and upon the sentence imposed on count 3 making a total effective sentence of four years and two months. A declaration was made that the applicant serve a minimum of two-and-a-half years' imprisonment before becoming eligible for parole. All licences to drive a motor vehicle were cancelled and he was disqualified from obtaining a licence for a period of four years from 29 June 2001. Nguyen admitted 20 prior convictions from five court appearances. They included attempted theft of a motor vehicle, assault with a weapon and a number of drug offences involving heroin.

The record of the sentence on the Presentment erroneously records that two months of counts 1, 2, 3 and 5 be cumulative upon count 3. This error was carried into the Return of Prisoners. This Court has commented on a number of occasions of the need to ensure that official court records be carefully checked before being signed by the judge's associate or the judge. This Court is not empowered to correct the record. It must be done by the County Court on the initiative of the Director of Public Prosecutions.

The appellant, Okobagerish, who is now aged 19 years, pleaded guilty to eighteen counts of armed robbery (counts 1-3, 6-10, 13-15, 17, 18, 20-23 and 26), four counts of attempted armed robbery (counts 12, 16, 19 and 24) and four counts of theft (counts 4, 5, 11 and 25). On each count of armed robbery he was sentenced to be imprisoned for four years. On each count of attempted armed robbery to be imprisoned for three years. On each count of theft of motor vehicles to be imprisoned for 18 months. An order was made that two months of each sentence be cumulative with each other and upon count 1, a total effective sentence of eight years and two months. An order was made fixing a minimum period of six years before he would become eligible for parole. All licences to drive a motor vehicle were cancelled and he was disqualified from obtaining a licence for six years from 29 June 2001. Okobagerish admitted 9 prior convictions from three court appearances including theft and drug offences.

The appellants have appealed against the sentences imposed upon them in the County Court on 29 June 2001. Leave to do so was granted by Callaway, J.A. on 21 September 2001. Each appellant applied for leave to appeal on a number of grounds. On 19 September 2001 the Registrar granted Nguyen leave to substitute five new grounds of appeal. On 18 September 2001 the Registrar granted Okobagerish leave to substitute seven new grounds of appeal.

The two appellants met in the city area and proceeded to Kensington where Okobagerish purchased and used heroin and provided heroin for Nguyen. They proceeded to North Melbourne where they illegally gained entry to a motor vehicle and drove it away, first to a doctor's surgery in North Melbourne where Okobagerish obtained a prescription for Temazepan and had it dispensed at a nearby pharmacy. Okobagerish suggested that together they should commit an armed robbery on a post office each armed with a knife. Okobagerish agreed to approach the victim in the post office whilst Nguyen cover the door to stop the escape of the victim and to prevent the intervention of any third party. The target post office was in North Melbourne. It was entered at about 5.20 p.m., both offenders being armed with a large kitchen knife. The female proprietor was threatened by Okobagerish who pointed the knife at her and demanded money. Her husband appeared and courageously advanced on the offenders armed with a broom. The appellants ran from the shop empty-handed, driving away in the stolen car. The stolen car was driven to the vicinity of a newsagency in Moonee Ponds. After inspecting the shop Okobagerish approached the male shopkeeper, threatening him with a knife and demanding money. Nguyen walked up behind the female manager, pulled out his knife, stood directly behind her, leant around, and placed the knife a few centimetres from her throat. In his police interview Nguyen said he put the knife to the female's chest, not her throat and had no intention of harming her. Cash and cheques to the value of $1,700 approximately was taken from the cash register and Tattslotto drawer by Okobagerish. The two victims in the shop were traumatized by the incident. This incident occurred about 6.30 p.m. Not long afterwards, the applicants drove the stolen car to a service station where Okobagerish confronted the male attendant with a knife and robbed the till. As the attendant was opening the till, Nguyen yelled to Okobagerish to stab the attendant. In his police interview Nguyen denied saying to Okobagerish: "Stab him, stab him." Okobagerish also stole the pay packet of the attendant. Cash to the value of $1,480 was stolen.

Later in the evening, police engaged in a drug sweep on a Housing Commission estate in Kensington arrested Nguyen, but Okobagerish managed to run away. During a search of Nguyen, the bottle of Temazepan was located in his pocked. The police later located the stolen car, but the cash stolen in the robberies was never recovered. Nguyen made full admissions to the police about the offence, and provided his co-offender's given name - Daniel. In fact Okobagerish's given name is Natnal. The police arrested Okobagerish on 26 February 2001.

This description of the events on 13 February 2001 covers all the counts to which Nguyen pleaded guilty and counts 5, 11, 13 and 14 in the presentment to which Okobagerish pleaded guilty.

Offending by Okobagerish between 28 January and 26 February 2001 (other than 13 February)

It is unnecessary to describe in detail the offending of Okobagerish. He selected "soft" targets such as convenience stores or service stations and sometimes committed the offences alone (counts 6, 15, 16, 18 and 19), at other times with a co-offender. When he had a co-offender he was usually the main perpetrator and a kitchen knife was the weapon of choice. Okobagerish told the police that he purchased a new knife from a supermarket for each armed robbery and discarded the knife he used after the offence. He stole about $22,000 and used the proceeds to support his heroin habit. Many of the victims were traumatized by their experience. The stolen cars used in the commission of the armed robberies were restored, undamaged, to their owners. When arrested on 26 February 2001, Okobagerish was co-operative with the police and made full admissions.

The sentencing judge described the modus operandi of the appellants in the course of his sentencing remarks:

"In each crime the modus operandi was identical. Okobagerish, usually accompanied by a co-accused, would enter a convenience type store and when that store was empty of customers, would demand money from the attendant who was always alone, whilst threatening that attendant with a knife held by himself and a knife or another weapon held by his co-offenders. Cash, cigarettes, mobile phones and phone cards were stolen and the offenders would escape in a car stolen for that purpose."

Reference needs to be made, in particular, to counts 4 and 5 (theft of cars) and to counts 7, 8 and 10 (armed robberies). These offences were committed by Okobagerish with a co-offender, McRory, who was sentenced in the County Court by Judge Gebhardt prior to the plea hearing involving Nguyen and Okobagerish. An issue of parity between the sentence imposed on McRory and the sentence imposed on Nguyen was raised during the appeal and will be considered in due course.

It need hardly be said that armed robbery is regarded in the community as a very serious crime and that offenders should expect to receive severe punishment, usually in the form of an immediate custodial term of imprisonment. Armed robbery is prevalent and often the offender is youthful, is addicted to drugs, and steals to finance his or her addiction. But an armed robber affected by drugs is unpredictable and has the potential to injure or kill the victim should things go wrong. Consequently, deterrence, both specific and general, is very important in the sentencing process. There is less scope for leniency on account of an offender's youth in the case of armed robbery because of the seriousness of the offence and because the prospects of rehabilitation are often not apparent. The appellant, Okobagerish, lost most of the benefit of being a "youthful offender", in my opinion, when he waged war against the small business community in suburban Melbourne in the pursuit of cash to buy heroin and in doing so terrorized his many victims.[12]

In the course of the plea made for Nguyen, counsel invited the judge to find that Okobagerish was the driving force and Nguyen was a follower. Counsel for the Crown conceded that Nguyen played the lesser role to some degree, although he was armed with a knife and on one occasion held it to the throat of one female victim of an armed robbery. The judge noted during the plea that "both are equally responsible for their criminality". I interpret this remark as a reference to their joint offences on 13 February 2001, for it was not criticized by Nguyen's counsel during the appeal. It is fair to say, however, that Okobagerish played the leading role and Nguyen was a follower, motivated by the prospect of being "shouted" heroin at the end of the day. A report of a psychologist dated 2 May 2001 was tendered and read by the judge. Reliance was placed on the appellant being a youthful offender who became involved with drugs at age 17 years.

The plea involving Okobagerish was heard on 25 June 2001. Mr Joblin, a psychologist, who had provided a report, was called as a witness. His report makes depressing reading and offers only small hope for future rehabilitation. Okobagerish demonstrated an antisocial attitude and serious drug use. He told Mr Joblin that, if his victims were emotionally upset or distressed by his conduct it was not his problem. However, in prison, he had become free of heroin and had adapted to working in the prison kitchen. The personal circumstances of Okobagerish included that he was born in Eritrea and came to Australia with his parents in 1995. He felt alienated and disoriented in Australia and was using about 1.7 grams of heroin a day when he was offending. To feed his drug habit required a considerable amount of money, which he did not have unless he stole money from hapless victims. The youth of Okobagerish was relied upon in terms of immaturity and prospects for rehabilitation.

The judge's attention was drawn to sentences earlier imposed in the County Court on Michael McRory, a co-offender of Okobagerish, in counts 4, 5, 7, 8 and 10, car theft and armed robberies. McRory received a total effective sentence of two years' imprisonment wholly suspended for two years upon an undertaking given by the Unit Manager, Court Advice, Melbourne Juvenile Justice Centre, that McRory would be taken from the court and placed on a plane to New Zealand, his country of origin. Counsel for McRory, perhaps surprised at the course of events, observed: "It seems to me it's a creative form of sentencing." McRory had more than 500 prior convictions in his criminal history.

The sentencing judge in the present case was very concerned by what he described as a "totally inappropriate and dangerous sentence" imposed on McRory and how it should be regarded in terms of parity between Nguyen and McRory. In the end, his Honour applied the principle stated in Patterson[13]

"The principle of parity between sentences does not require a court to sentencing an offender to impose what, in its view, is a totally inappropriate sentence merely because such a sentence has been imposed on a co-offender. However, this does mean that a manifestly inadequate sentence passed on a co-offender can be completely ignored. Where the disposition between the sentences is manifestly not merely arguably, excessive, the sentence, though adequate, may be altered to avoid the feeling of injustice by the co-offender."

It is convenient first to deal with the appeal of Okobagerish, because the appeal of Nguyen raises a question of parity should the Court uphold the appeal of Okobagerish and re-sentence him.

The first ground of appeal asserts that the total effective sentence of eight years two months' imprisonment with a non-parole period of six years was, in all the circumstances, manifestly excessive. The second ground asserts that the sentence imposed in respect of each count was manifestly excessive. Grounds 3 to 7 are particulars of grounds 1 and 2. Accordingly, all the grounds can be considered together.

Mr Morrissey submitted that Okobagerish was given a "crushing sentence" for a young offender. Authorities such as Cowie[14] and Yates[15] describe a "crushing sentence" as one that "is imposed in such a way that it would provoke a feeling of hopelessness in the applicant if and when he is released" and in Yates in relation to a 68 year-old prisoner as connoting "the destruction of any reasonable expectation of useful life after release".

Whether a sentence is "crushing" or "manifestly excessive" does not permit much argument, it is very much a matter of impression, and needs to be viewed objectively having regard to all the circumstances.

For an offender of Okobagerish's age, facing imprisonment for eight years, if parole is denied, for 26 serious offences, I consider that "crushing" is an altogether inappropriate and exaggerated description. Should he be released on parole after six years, he will be aged about twenty-four-and-a-half years and will have the expectation of a long useful life.

Mr Morrisey quite frankly acknowledged that Okobagerish was leading a most unstable life, ravaged by heroin, drifting from house to house, when he set about the criminal spree to which I referred earlier, in 2001. He submitted that each individual sentence for armed robbery, four years, and each individual sentence for attempted armed robbery, three years, was manifestly excessive, but he did not challenge the cumulation order whereby two months of each sentence was cumulated with each other and upon count 1.

It was argued that his Honour did not have sufficient regard to the youth of Okobagerish, his plea of guilty, co-operation with the police and prospects of rehabilitation. The judge said he took the plea of guilty into account, but because Okobagerish was apprehended shortly after committing his last offence and frankly admitted his participation in all 26 offences, not much weight needed to be given to the plea of guilty. Although the comparative youth of Okobagerish had to be taken into account in terms of the future, his youth and prospects of rehabilitation did not merit much weight as mitigating factors, in my opinion, in the circumstances. A psychologist of Mr Joblin's experience was very cautious about Okobagerish's rehabilitation prospects.

Mr Holdenson submitted that the individual sentences and cumulation produced a total effective sentence which was not manifestly excessive. I agree with his analysis of the sentences and the total effective sentence. The offending in this case, involving Okobagerish, presents as the worst case of multiple offences of armed robbery I have seen in this Court. I am most mindful that protection of the community, deterring the offender and denouncing the type of conduct in which Okobagerish engaged are amongst the purposes and principles of the Sentencing Act 1991.[16]

Mr Morrissey further submitted that the non-parole period fixed was manifestly excessive and a lesser term should be fixed. In that event, he contended, the sentencing discretion would be re-opened and lesser sentences on individual counts should be imposed. Mr Morrissey submitted that the effect of an error as to the length of the minimum term is to vitiate the whole sentence.[17] I do not disagree.

Mr Holdenson for the respondent conceded that the minimum term was manifestly excessive, but contended that, should the Court reduce the minimum term, the individual sentences and the cumulation order should remain untouched. Serious consideration has to be given to such a submission coming from the Crown and I have done so.

I am not persuaded that the minimum term is manifestly excessive. I have reached this conclusion for several reasons. Firstly, I found no error of law in the judge's sentencing remarks. Second, the judge's sentence was carefully structured at all levels and did not, in my opinion, breach the principle of totality. Third, selection of the minimum term is an exercise of judicial sentencing discretion: "It is the minimum term that the judge determines justice requires that the prisoner serve having regard to all the circumstances."[18]

"[T]here is no standard non-parole period, standard proportion or standard gap. There cannot be: it is of the nature of a non-parole period that all the circumstances must be taken into account in order to determine the minimum time that justice requires the prisoner to serve before becoming eligible for conditional release."[19]

In my opinion, the judge was well informed about all the circumstances and well able to select an appropriate non-parole period. Were this Court to increase the gap between the head sentence and the minimum term, as proposed by Mr Holdenson, without disturbing the head sentence, it might be seen as an unwarranted interference with the sentencing discretion.

Accordingly, I consider that the appeal against sentence by Okobagerish should be dismissed. All the grounds failed. I should add that no argument was presented by Mr Morrissey that, if the non-parole period was not reduced, the period of disqualification should be considered as excessive.

The grounds of appeal argued by Mr Lindner on behalf of Nguyen were effectively reduced to three. One of them, disparity of sentence between Nguyen and Okobagerish, was argued upon two bases. First, that the sentences imposed upon Nguyen were insufficiently disparate as compared with the sentences imposed upon Okobagerish and gave rise to a justifiable sense of grievance in Nguyen so as to leave an objective observer with the impression that justice has not been done. Second, that should the Court uphold the argument that Okobagerish's sentence is manifestly excessive and reduce his sentence, a corresponding reduction should be given to Nguyen. In my opinion, the first and more general submission fails because there was sufficient disparity between the sentences imposed on both offenders. The second limb of the submission fails because the Court is not re-sentencing Okobagerish. The parity argument fails, in my opinion.

The principal ground of appeal is that the sentence is manifestly excessive. This is evidenced, Mr Lindner submitted, in the individual sentences, the total effective sentence and the non-parole period. First, it is necessary to deal with the sentence imposed on count 5 - possession of a drug of dependence, namely Temazepam. Mr Lindner submitted that the nature and effect of Temazepam was not made known to the judge by the prosecutor and he ought to have been informed that Temazepam is a prescription drug listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 which is used as a sedative. It should be viewed as a drug of dependence in a class below cannabis, he argued. Mr Lindner submitted that the sentence of six months' imprisonment was excessive and a lesser sentence without cumulation should have been imposed. This argument was conceded by Mr Holdenson. I agree that a lesser sentence of, say, one month without cumulation would have been appropriate. Ground 5 of the grounds of appeal succeeds, in my opinion.

In support of the manifestly excessive ground, Mr Lindner submitted that the judge gave insufficient weight to the following matters:

(i) youth;

(ii) guilty plea;

(iii) assistance given to the police;

(iv) prospects for rehabilitation.

With regard to (iii), Mr Lindner argued that the judge should have found that Nguyen assisted the police in finding his co-offender Okobagerish. I am not persuaded that such a finding should have been made. I reach this conclusion after reading the record of interview between Nguyen and the police. Okobagerish was a casual acquaintance of Nguyen, meeting for the first and only time on 13 February 2001. Nguyen did not know where his co-offender lived. He believed his first name was "Daniel". The police had found his surname on the Temazepam bottle and had a description fitting Okobagerish provided by the victims of the robberies. Altogether, Nguyen provided little assistance to the police beyond admitting complicity in one car theft, one attempted armed robbery and two armed robberies.

A psychological appraisal made of Nguyen by Mr Bernard Healey was presented to the judge. It revealed that Nguyen was born in Preston, his parents were refugees from Vietnam. He developed a heroin habit in about 1999. He had a criminal record which included possession and trafficking in heroin and escaping from a youth training centre. Intellectual testing revealed above-average capacity and personality testing did not indicate any mental or emotional illness. He was regarded as an impressionable, immature youth. Mr Healey did not comment upon his prospects of rehabilitation. In March 2001 he was sentenced to four months' imprisonment for trafficking to be served in an adult prison because he was deemed unsuitable for a youth training centre.

His Honour said that he took into account the plea of guilty and was conscious of the general principles applicable to youthful offenders stated in Mills.[20] I have no reason to doubt that he did so.

Mr Lindner presented a rather unconvincing argument that principles of parity required the judge to impose a lenient sentence of Nguyen to avoid disparity with McRory, although McRory was not a co-offender. As I indicated earlier the sentencing judge determined that the sentence imposed on McRory by Judge Gebhardt was "totally inappropriate and dangerous", a view I share.

Authorities on parity where one offender has been given a lenient sentence are numerous and need not be referred to in depth.[21] The short answer to Mr Lindner's argument is, I consider, that no fully informed right-thinking person in the community would regard the disparity between the two sentences as unjust to the applicant. McRory had a windfall gain in most unusual circumstances and was not a co-offender of Nguyen.

I am unpersuaded that the sentences, individually, or in totality, are manifestly excessive, save for the sentence imposed for count 5. I would propose that the sentence imposed for count 5 should be reduced to one month with no order for cumulation. The total effective sentence will, therefore, be reduced to four years. I also propose that the non-parole period will also be reduced by two months to two years and four months. Otherwise the appeal should be dismissed, in my view. I record that no submission for a shorter period of disqualification was made.

[1] Power v. The Queen [1974] HCA 26; (1974) 131 C.L.R. 623, at 629; Deakin v. The Queen [1984] HCA 31; (1984) 58 A.L.J.R. 367.

[2] R. v. Krasnov and Shlakht (1995) 82 A.Crim.R. 92, at 99.

[3] R. v. Chan (1994) 76 A.Crim.R. 252, at 255.

[4] Power v. The Queen, supra, at 628.

[5] Nguyen's non-parole period was only 60% of his head sentence.

[6] See Griffiths v. The Queen (1989) 167 C.L.R.372, at 391 per Gaudron, J. and McHugh, J.; see too R. v. Bolton and Barker [1998] 1 .V.R. 692, at 699, per Callaway, J.A.

[7] R. v. Bernath [1997] 1 V.R. 271, at 276.

[8] R. v. V.Z [1998] VSCA 32, at [13].

[10] R. v. Lefebure [2000] VSCA 79; (2000) 112 A. Crim.R 41, at 44; R. v. Bazley, unreported, Court of Appeal, 21 August 1997; D.P.P. v. Lepore [2000] VSCA 195.

[11] See, in particular, R. v. Patterson, unreported, Court of Criminal Appeal, 24 July 1986.

[12] See R. v. Mills [1998] 4 V.R. 235 at 241; R. v. Giles [1999] VSCA 208 at [20]; R. v. Bell [1999] VSCA 223 at [14]; R. v. Tran [2002] VSCA 52 at [12]- [15]

[13] R. v. Patterson (unreported, Vic. C.C.A., 24/7/86). The principle was affirmed in R. v. Wilson [2000] VSCA 202; (2000) 116 A.Crim.R. 90 at 96.

[14] R. v. Cowie (unreported, 2/2/78, Vic C.C.A.).

[15] R. v. Yates [1985] VicRp 3; [1985] V.R. 41 at 48.

[16] Sentencing Act 1991, s.1(d)(i) and (iii) and s.5(1)(b), (d) and (e).

[17] R. v. Pope [2000] VSCA 108.

[18] Deakin v. The Queen [1984] HCA 31; (1984) 58 A.L.J.R. 367; R_. v. Pope_ (supra), Callaway, J.A. at [28].

[19] R. v. Harkness, Dang, Gujatovic and Brooks [2001] VSCA 87 at [24].

[21] See R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402, Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606; Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295.

At a glance

Court

Decision date

Before

Source

Judgment (90 paragraphs)

Parties