R v Nolan [1998] VSCA 135

Court of Appeal (Vic)|1998-12-02|Before: TADGELL, BATT and BUCHANAN, JJ.A.

The applicant has applied for leave to appeal against his sentence.

The applicant is 27 years of age. At the time of the commission of the offence he had been addicted to heroin for some three years. He did not fit the usual description of a drug addict in that he was steadily employed and he and his de facto wife were purchasing their house. His partner was also addicted to heroin. She was employed as a process worker. The applicant's family, friends and workmates did not know that he was using drugs. He and his partner financed their addiction from their own resources. However, their consumption of heroin increased beyond the amount of their wages, and they borrowed money from a bank and a finance company. Eventually they reached the point where their combined wages were not sufficient to service their debts and their consumption of heroin.

"because - well, I couldn't get the time off work. You have to go in for seven - seven or eight days you go into a programme."

When asked what was the problem about going in for seven days, he said:

"I had commitments, family commitments. No one knew we were on drugs, you know. We couldn't just disappear ..."

On 2 March 1998 the applicant was desperate. He had no money and needed heroin. He drove to his local milkbar in Pakenham. He asked about cigarettes and left. He returned several minutes later. The shop was attended by the owner, Valerie Raymond, and one assistant, Vicki O'Driscoll. They recognised the applicant as a regular customer. While both women were at the rear of the shop they heard the till rattle and looked up to see the applicant rifling the till behind the counter. When approached by Raymond, the applicant turned and pointed a bread knife towards her. Both women went to the rear of the shop and closed an adjoining door.

On his arrival home the applicant abandoned the car that he had used for the robbery and he and his de facto wife took their other car and drove to Noble Park to buy heroin. Both were arrested a short time later in Noble Park. The applicant was interviewed and made a full admission of his guilt.

Neither the shop owner nor her assistant made victim impact statements, although invited to do so. The sentencing judge said that he inferred that there were no significant lasting consequences of the robbery as far as they were concerned.

A day or so after the robbery the applicant wrote to the shopkeeper and her assistant to express his remorse. He wrote, in part:

"I feel that I have to write this letter to let you both know that I am very sorry I have caused any permanent fear of anyone who walks through your door of the business and your own homes. For this I am so very, very sorry and I would like to assure you both I had no intentions of causing anybody any harm" -

Since his arrest the applicant has embarked, successfully so far, on a methadone program to counter his addiction to heroin.

The sentencing judge acknowledged the mitigating factors advanced on behalf of the applicant: his full admissions to the police, his plea of guilty at the first available opportunity, his lack of any prior convictions, his admirable work record, and the fact that the crime was due to a craving for drugs. While "the fact that an armed robbery is committed to support a drug habit is of little consequence in mitigating the sentence to be imposed" (R. v. Halewyn (1984) A.Crim.R. 202 at p.203 per Young, C.J.), the applicant's position was similar to that described by Callaway, J.A. in R. v. Bouchard (1996) 84 A.Crim.R. 499, at pp.501-2, of "a man crazed by a drug craving who committed an offence on the spur of the moment and later repented".

However, the learned sentencing judge appears not to have taken the mitigating factors into account in fixing the head sentence. Rather he appears to have fixed the head sentence by reference to the nature of the crime, and possibly to one aspect of rehabilitation, and also the need to promote general and personal deterrence, and then proceeded to fix the minimum term by reference to the mitigating factors he had earlier identified. He said:

"The head sentence ought to reflect the denunciation by the court of this sort of conduct and the need to deter Mr Nolan and the community from committing this sort of crime. He may be well on the way to beating his addiction but I suspect there is some way yet to go. The minimum term is small by comparison to the head sentence, and it takes into account the mitigating factors to which I have referred."

In approaching the task of sentencing the applicant in that way the sentencing judge erred. In fixing the head sentence his Honour was required to bear in mind the circumstances relevant to the crime and to the applicant. In R. v. Grmusa [1991] VicRp 54; (1991) 2 V.R. 153, five youths convicted of manslaughter were each sentenced to seven years' imprisonment and different minimum terms were fixed. The Court of Criminal Appeal held that the sentencing judge failed to take all relevant factors into account in fixing the head sentence. The Court said, at pp.157-8:

"There are two stages in the process of awarding a prison term for which a minimum term is to be fixed. The judge must first impose a sentence appropriate to the crime in question bearing in mind the circumstances relevant both to the crime and to the offender. Having done that the second stage is the selection of an appropriate minimum term. The purpose of fixing a minimum term is unrelated to the selection of an appropriate sentence (sometimes called 'the head sentence'). The latter sentence 'represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process'. That is not to say that the fixing of a minimum term does not and is not intended to lessen the burden of punishment. But the selection of a minimum term is a process different from the selection of the appropriate sentence. The minimum term is fixed so as to determine when the convicted person shall be eligible for parole."

See also R. v. Bolton and Barker [1998] 1 V.R. 692.

In my opinion it does appear that the sentencing judge in the present case failed to take into account all the relevant factors - including a lack of prior convictions and the offender's drug addiction - and thus his discretion miscarried. Accordingly, the sentence must be set aside.

In re-sentencing the applicant, I consider that his lack of prior convictions, the role played by his drug addiction in the commission of the crime and the opportunity which his arrest and conviction have given him to tackle his addiction are a powerful set of mitigating circumstances. I would re-sentence the applicant to two years' imprisonment and suspend 18 months of that sentence for a period of two years.

I have found this a far from easy application to decide on each of the aspects of it that have been argued, but in the end I have come to agree with the conclusion and substantially with the reasons that have been expressed by Buchanan, J.A. Thus I find it necessary to consider only ground 3, which asserts a specific sentencing error on the part of the judge, namely that he erred in the exercise of his discretion by reflecting matters of denunciation and specific and general deterrence in the head sentence and matters of mitigation in the minimum sentence.

Although his Honour referred, in the third paragraph of his sentencing remarks, to imprisonment in the context of discussing rehabilitation, and although I readily acknowledge that sentencing remarks should not be read by appellate courts hypercritically, I consider that the last two substantive paragraphs of his Honour's remarks show that, with the possible exception of rehabilitation, his Honour took the mitigatory factors which he had enumerated earlier in his remarks, and even before that during the plea held on the same day, into account only in fixing the non-parole period, and not also in arriving at the appropriate head sentence. That is so, I consider, even if the purpose of the last of the two substantive paragraphs be, as it may well be, to explain the unusual shortness of the non-parole period when compared with the head sentence. In doing what I consider he did, his Honour erred, as appears from Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at 531, R. v. Grmusa [1991] VicRp 54; [1991] 2 V.R. 153 at 158 and R. v. Bolton and Barker [1998] 1 V.R. 692 at 693 and 696-7.

The sentencing discretion is therefore re-opened. The facts of the offence and the facts personal to the applicant have been stated by Buchanan, J.A., and, as I have said, the sentencing judge enumerated the mitigatory factors. I therefore do not trouble to rehearse those matters now. I wish merely to emphasise, first, that this armed robbery was ill-planned, unsophisticated and highly likely to end, as it did, with the applicant's identification and arrest; secondly, that the evidence disclosed some prospects of rehabilitation; and, thirdly, that the applicant gave evidence on his plea which amply demonstrated his remorse, evidenced also by the letter Buchanan, J.A. has referred to, and his desire to free himself of his addiction, and also explained how he had to commit the offence, that is, as a result of the drugs and pills he had taken, the drugs having been taken over a period of some years.

Whilst acknowledging the seriousness of the offence, committed as it was upon a local milkbar staffed at the time by two women, and the possibility inherent in the armed robbery that it would end in tragedy, I would, taking the mitigatory factors as well as the nature and facts of the offence into account, impose a head sentence of two years' imprisonment. In my view the offence warrants immediate incarceration, but, in all the circumstances, I have come to conclude that this is a case where a somewhat merciful course should be followed by way of suspension of 18 months of the term for the period stated by Buchanan, J.A.

I am unable to agree in the result reached by the other members of the Court. The specific sentencing error contended for on behalf of the applicant depends on an interpretation of the judge's sentencing remarks that I consider they need not bear. It must be conceded that the relevant portion of his Honour's remarks, which has been set out by Buchanan, J.A., is not very elegant. I should not, however, construe them with the strictness that my brethren have assigned to them. The judge unnecessarily used the expression "head sentence" when he should be understood to mean, in my opinion, no more than the sentence that he was at the time imposing. I do not treat his Honour's last substantive paragraph as intending to do more than explain the unusually short non-parole period that he was in the process of fixing. I do not, therefore, detect specific sentencing error.

Being in a minority, I need say no more than that I do not consider that the sentence was manifestly excessive for the crime of armed robbery in the circumstances that have been described, the maximum penalty for which was 25 years' imprisonment.

Application for leave to appeal against sentence allowed. Direct that the appeal be treated as instituted and heard instanter and allowed.

Sentence of imprisonment imposed below set aside. In lieu order that the applicant be sentenced to be imprisoned for two years.

Order that 18 months of the said sentence be suspended for a period of two years from this date.

The Court will declare that 139 days of the said sentence be reckoned as already served and direct that the declaration and its details be noted in the records of the Court.

Nolan, I am required to explain to you the effect of what the Court has done. The Court has by majority allowed your application for leave to appeal against sentence, and the sentence which was imposed upon you in the County Court has been set aside. Instead of that you are now re-sentenced to be imprisoned for a period of two years, that is, two years instead of three. Do you follow?

And instead of there being a non-parole period of one year the Court has ordered that 18 months of the two years now imposed upon you be suspended for a period of two years. That means that, of the two years, you need to serve a period of six months, and of that period of six months you have already served the period between the time you were originally sentenced in the County Court and today, which is a period of 139 days. So the effect of it is, and I have not done the arithmetic precisely, that you will be released from custody some time early in the new year.

That release does not release you from the sentence of two years. It merely means that so far you have to serve only six months of it. If during the period of two years from today you commit another offence, whether in Victoria or outside Victoria, you are guilty of another specific offence, for which you may be proceeded against by the authorities, and the consequences are likely to be very serious if you do that. So your life hereafter is largely in your own hands. If you behave yourself between now and early next year you will be released, but you will have to continue to behave yourself for the balance of two years from today. If you do not, you will be brought back and dealt with. Do you understand that?

The Court wishes you success in your pursuit of rehabilitation against the grip of this dreadful drug. It is all in your hands to achieve it. If you do not, you will continue to lead a miserable life.

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