R v Pividor & Dale [2002] VSCA 174

Court of Appeal (Vic)|2002-11-01|Before: WINNEKE, P., CHERNOV, J.A. and O'BRYAN, A.J.A.

Criminal law - Sentencing - Armed robberies upon clubs where gaming permitted and a private residence - Discount given for co-operation with police and attendant risk to safety of offender - Whether sufficient in the circumstances - Fresh evidence that risk a reality in the case of one offender - Parity - Sentences not manifestly excessive - Reduction of minimum term since risk a reality.

In my opinion Pividor's application should be dismissed and Dale's appeal should be allowed for the reasons given by O'Bryan, A.J.A.

I agree for the reasons advanced by O'Bryan, A.J.A. that the application and the appeal should be disposed in the manner proposed by him.

These appeals are brought against sentences imposed in the County Court on 10 April 2001. Pividor, who is now aged 34, pleaded guilty to eight counts in a presentment and was sentenced to be imprisoned for nine years. A non-parole period of six years was fixed. He was granted leave by the Registrar to substitute the following four grounds of appeal for the grounds specified in his original notice of application for leave to appeal the sentence:

"1. The individual sentences, the total effective sentence and the non-parole period are manifestly excessive. 2. The learned sentencing judge erred in placing no weight upon the fact that the applicant suffered from Attention Deficit/Hyperacitvity Disorder - Combined Type. 3. The learned sentencing judge erred in failing to place sufficient weight upon the fact that the applicant had volunteered admissions in relation to counts 1 and 2 without which he would not have been prosecuted in respect of those counts. 4. The learned sentencing judge erred in failing to place sufficient weight upon the assistance the applicant had given to law enforcement authorities."

Pividor, to whom I shall refer as "the applicant", was refused leave to appeal pursuant to s.582 of the Crimes Act 1958 on 10 August 2001.

Dale, who is now aged 39, pleaded guilty to five counts in the same

presentment and was sentenced to be imprisoned for six years. A non-parole period of four years was fixed. He was granted leave by the Registrar to substitute the following four grounds of appeal for the grounds specified in his original notice of application for leave to appeal the sentence:

"1. The learned trial judge erred in that he did not give proper weight to the principles of parity between the sentences imposed on the co-offender Pividor and the applicant: (a) for one armed robbery he imposed a sentence of two-thirds of the sentence he imposed on Pividor for three armed robberies; (b) he equated the circumstances of the robbery of drug dealers with that of armed robbery of innocent members of the public; (c) he failed to give any or proper weight to the different criminal histories of Pividor and the applicant. 2. The learned trial judge erred in that he did not give proper weight to the demonstrations of remorse by the applicant in his dealings with the police. 3. There is fresh evidence available as to the use of the material provided to the police by the applicant. 4. The sentence was manifestly excessive."

Dale, to whom I shall refer as "the appellant", was granted leave to appeal pursuant to s.582 of the Crimes Act 1958 on 10 August 2001.

Count 1 presented that the applicant committed an armed robbery on 11 March 2000 at the Noble Park Returned Servicemen's League Club. He robbed Raymond Hearn, a member of the staff of about $9,600. The applicant was accompanied by an unidentified co-offender. Hearn was of the opinion that the applicant was armed with a firearm, but the applicant denied that he was the person armed when he was interviewed by the police on 20 September. The two offenders wore balaclavas when they entered the club. They bailed up staff and 18 patrons at about 11.50 p.m. The co-offender kept watch over the patrons whilst armed with the shotgun whilst the applicant forced Hearn to unlock a safe in which the cash takings were kept. The offenders left the scene in an unknown vehicle.

Count 2 presented that the applicant committed an armed robbery on 31 March 2000 at the Croydon Golf Club. At about 9.50 p.m. the applicant and two unknown co-offenders wearing balaclavas entered the club; one of the co-offenders was armed with a single barrel sawn-off shotgun. They bailed up 16 staff and patrons. The manager was forced at gunpoint by one offender to the cashier's service area. The applicant took about $6,000 from the cash registers and placed it in a bag before departing in a motor vehicle.

Count 3 presented that the applicant, between 1 July and 19 September 2000, dishonestly handled stolen goods, namely two wristwatches which were found in his possession when he was arrested on 19 September.

Count 4 presented that the applicant and the appellant, who was armed with a sawn-off single barrel shotgun, held up the occupier of private premises situate in Ranfurlie Drive, Glen Waverley as he left from the back door at approximately 8 a.m. on 18 September 2000. Both offenders were wearing balaclavas and gloves when they forced the occupier at gunpoint to re-enter his house and hand over about $1,000 in cash, a mobile telephone and a quantity of cannabis. Following the robbery, the offenders tied up the occupier and another person in the house before leaving the house and driving away in the applicant's vehicle.

The police were aware that the applicant and the appellant were planning a "job" involving possibly an amount of $10,000 through telephone intercepts between 12 and 18 September. The appellant contacted the applicant offering details of a "job" and they arranged to meet one another during the week. In a later call, the appellant asked the applicant to obtain a firearm. On 18 September the applicant stayed overnight at the appellant's home in Mulgrave.

Soon after the armed robbery, police intercepted the applicant's vehicle in Jells Road, Wheelers Hill. In the vehicle were the applicant and the appellant. The appellant was the driver. During a search of the applicant's premises, police discovered five 12-guage shotgun cartridges unsecured in a bedroom and the watches the subject of count 3.

When the applicant was interviewed about the armed robbery in Ranfurlie Drive, he volunteered that he had been involved in the armed robberies at Noble Park R.S.L. and Croydon Golf Club. He described staking out the premises in the weeks preceding the robberies.

Counts 5, 6, 7 and 8 were related to the armed robbery in Ranfurlie Drive. Counts 5 and 6 were charges of common assault on the two male occupiers of the house. Count 7 related to the quantity of cannabis stolen from the Ranfurlie Drive property which was found in the possession of the applicant and the appellant in the car. Count 8 relates to the sawn-off shotgun used in the armed robbery in Ranfurlie Drive.

The applicant admitted 41 prior convictions which included firearm offences, theft, burglary, trafficking, possessing and using cannabis, from 10 court appearances between 1992 and 1999. The appellant admitted three prior convictions for drug offences from one court appearance in 2000.

Following pleas, the applicant and the appellant were sentenced as follows:

Count 1 - Armed robbery at Noble Park The applicant to be imprisoned for six years. Count 2 - Armed robbery at Croydon The applicant to be imprisoned for six years. Count 3 - Handling stolen goods The applicant to be imprisoned for six months. Count 4 - Armed robbery at Ranfurlie Drive The applicant and respondent each sentenced to be imprisoned for six years. Counts 5 & 6 - Common assault The applicant and appellant each to be imprisoned for three months on each count. Count 7 - Possession of cannabis. The applicant and the respondent each to be imprisoned for three months. Count 8 - Firearm offence. The applicant and the appellant each to be imprisoned for six months.

A cumulation order was made in the case of the applicant but not in the case of the appellant. Eighteen months of the sentences on each of counts 2 and 4 were ordered to be served cumulatively on each other and on count 1.

The total effective sentence imposed on the applicant was nine years. A minimum term of six years was fixed before he could become eligible for parole.

The total effective sentence imposed on the appellant was six years. A minimum term of four years was fixed before he could become eligible for parole.

During the plea for the applicant, reliance was placed on a motor cycle accident in which he suffered mainly physical injuries in November 1990, when he was aged 22, about two years before he made a court appearance in May 1992 charged with drug offences involving cannabis. Until the accident it was said that the applicant was a good worker employed in the butchery trade. Following his recovery from the accident, he was unable to return to his trade and for three years was on a disability pension. He began to abuse alcohol and heroin. He was diagnosed as having an attention deficit hyperactivity disorder which affected his learning ability and produced behavioural problems. In 1999 he attended the Maroondah Addiction Recovery Project INC as an in-patient to deal with his drug problems, but his alcohol problem was left untreated.

Although the applicant was unable to rely upon remorse in relation to count 4 because he was caught red-handed, his counsel relied upon information the applicant provided to the police about his role in the Noble park and Croydon armed robberies. His counsel submitted to the judge that in providing information of assistance to the police, he put himself at some personal risk and ought to receive a sentence discount and/or a longer parole period.

For the appellant, reliance was placed upon his history of being a hard-working person and with a relatively insignificant criminal history. The prior convictions for drug offences related to a small quantity of cannabis for personal use. He had been a user for abut 20 years, his counsel informed the court.

Reliance was also placed upon the appellant's straitened financial circumstances after 1997 and his attempts to repay a substantial business debt. Commendable as that conduct was, I do not consider it could be a mitigating matter for armed robbery. The early plea of guilty was also relied upon, but the weight to be given to the plea was reduced considerably because the appellant was caught red-handed in the car after the robbery. The case against him was overwhelming. Evidence before the court indicated that the appellant had made an effort to overcome his addiction to cannabis.

As was the case with the applicant, evidence was adduced from a police source which showed that the appellant had provided helpful information to the police about two cannabis cultivation places and drug dealing and was likely to be at personal risk during any period in prison.

The sentencing judge commented in his sentencing remarks upon the planning behind each armed robbery and the professional manner in which each robbery was carried out. His Honour said that he took into account the victim impact statements and the great fear the victims had when confronted by intruders armed with a shotgun. He said he regarded these armed robberies as more serious than others committed by drug-addicted persons without pre-planning who sought money to feed their craving for drugs. He considered that the admissions made to the police in respect of counts 1 and 2 by the applicant should carry with them appropriate discounting values, being indicative of remorse. Also, he said that both men were entitled to a considerable discount for providing to the police useful information at considerable risk to themselves.

Mr Croucher for the applicant argued grounds 2, 3 and 4 as independent grounds and as particulars of the complaint of manifest excess in ground 1.

As to ground 3, Mr Croucher submitted that the applicant's admissions to the police disclosed his involvement in two armed robberies (counts 1 and 2) without which it was most unlikely that he would have been charged. Mr Croucher submitted this was a very significant matter to be taken into account in sentencing and it was given insufficient weight as evidenced by the selection of six years' imprisonment as appropriate for counts 1 and 2. Count 4, which was not affected by voluntary disclosure also produced a sentence of six years. It followed, said Mr Croucher, that the discount given was less than appropriate.

Mr McArdle for the respondent submitted that the offences of armed robbery disclosed in counts 1 and 2 were of a serious kind which required stern sentences to reflect general deterrence and curial denunciation. He sought to draw a distinction between the offending involved in count 4 and counts 1 and 2. I am not persuaded there is a real distinction between the counts. Armed robbery involving the use of a firearm, whether carried out in a public place, such as a bank or a gaming place, containing members of the public, or in a private home are all serious examples of armed robbery. Be that as it may, it cannot be said that the judge was unaware of the sentencing principle that a substantial discount should be given to an offender who volunteers information about offences not known to the police.[1] The applicant's degree of co-operation with the police when they were investigating only the Ranfurlie Drive robbery was significant and pointed to his remorse.

The point at issue is whether a significant discount was given by the judge in respect of counts 1 and 2. In my opinion, the answer is clear. Sentences of six years' imprisonment for these robberies were considerably less than would be expected had no significant discount been built into the sentence. In my opinion, the head sentences on counts 1 and 2 do reflect a substantial discount.

Ground 4 overlaps ground 2 inasmuch as it raises the need for an informer's discount to be given in the sentence because the applicant exposed himself and his family to personal risk in providing information to the police. The evidence before the judge on the risk issue was not challenged by the prosecution. The sentencing principle was touched upon in R. v. Rostrom[2]. Charles, J.A., whose judgment was agreed in by Callaway, J.A. and Vincent, A.J.A., observed:

"It is now well established that where a prisoner has given assistance to the prosecuting authorities, this fact is to be weighed in favour of an element of leniency being extended to the person standing for sentence."

One aspect of the need for a discount is the risk the informer takes for his own safety whether in prison or at liberty and the circumstance that imprisonment will be more burdensome for the informer than would be the case for a normal inmate.

The judge was well aware that a significant discount was appropriate and it is reflected in the sentences selected for counts 1 and 2. Without the discounting significantly higher sentences would have been appropriate for counts 1 and 2 and a different cumulation order made.

Ground 2 arises out of a diagnosis made by a psychiatrist of the likelihood that the applicant has a longstanding Attention Deficit Disorder with Hyperactivity for which he was taking medication. The condition could have led the applicant to develop "borderline and anti-social characteristics". For sentencing purposes, I do not consider that the existence of the disorder in the past was of much consequence and for the future it appeared that the disorder was under control by medication.

Finally, Mr Croucher submitted that having regard to the matters arising from grounds 2, 3 and 4 and the mitigating factors, the total effective sentence and the minimum term are manifestly excessive.

It will be apparent already that I am unimpressed by his final submission. The circumstances of the armed robberies called for severe punishment. The judge had to accord proper weight to the matters raised in grounds 3 and he did so. I am unpersuaded that too little weight was given to those matters. The total effective sentence does not demonstrate sentencing error and I would dismiss the application.

Turning now to the appeal of the appellant, I shall deal with the grounds in the order in which they were argued by Mr Silbert.

Ground 1 raises a parity of sentencing issue based upon the matters raised in paragraphs (a), (b) and (c). Mr Silbert submitted that because the criminal history of the applicant was so significantly different to the history of the appellant, sentencing error occurred when the judge imposed the same sentences on the two offenders on counts 4 to 8 and in particular on count 4. In the appellant's case there was less need for specific deterrence because his past offending was limited to one court appearance for offences concerned with cannabis. Further, he submitted that the appellant had a justifiable sense of grievance because for one armed robbery in the home of drug dealers he received a head sentence of two-thirds of the sentence imposed on the applicant for three armed robberies, two of which were in public places and a minimum term of the same proportion as the applicant.

Mr McArdle submitted that the two offenders bore equal responsibility for a joint criminal enterprise which was well planned and professionally executed. The judge was aware of the roles of each offender and the difference in the criminal histories is reflected in there being no cumulation order made for the five offences, Mr McArdle submitted.

The judge's sentencing remarks show that he gave consideration to the principle of parity of sentencing. He said:

"Although there is no proper reason to differentiate between your role and that of your co-offender or between your criminality and his in the commission of those offences, I have taken into account your respective prior convictions, the matters personal to each of you, the discounts to which you are respectively entitled, the fact that he pleaded guilty to other and earlier armed robberies and so on and so on."

I do not consider that an independent observer acquainted with all the circumstances would consider that the appellant has a justified sense of grievance because he received the same head sentences on counts 4 to 8 as those imposed on the applicant.

As to ground 2 which asserts error by the judge in giving insufficient weight to the remorse shown by the appellant in his dealings with the police, I am not persuaded that the appellant did show remorse in his dealings with the police, or that special deterrence was not of significance. Relevantly, the judge observed: a "weighting and weighing and balancing exercise is necessary". It is quite inappropriate for a sentencing judge to disclose what discount was allowed for remorse and what was allowed for a guilty plea. It is usually enough that he has regard to such relevant matters.

Under ground 3 Mr Silbert seeks to rely upon fresh evidence to the effect that since the appellant was sentenced he was the victim of a serious injury in February 2002 intentionally caused by prison inmates whilst undergoing his sentence at Fulham Prison. At the plea hearing, evidence was adduced that the applicant had provided valuable information to the police about a number of matters and the judge took the evidence into account. Since then the risk factor recognized at the time of sentence has become a reality and imprisonment will be harder for him since he has been moved to a protection unit in a country prison.

In my view, the fresh evidence can and should be admitted because it satisfies the tests laid down in R. v. Eliasen[3].

In the circumstances, I consider that the punishment imposed on the appellant should be ameliorated to a degree because imprisonment can now be seen to impose a greater burden on him than was foreseeable when he was sentenced. This can be achieved, in my opinion, by reopening the sentencing discretion and reducing the non-parole period to three years. Otherwise, I consider that the head sentences should be confirmed. I am unpersuaded that the sentence was manifestly excessive. The offences to which the appellant was a willing and helpful party justified the sentence imposed by the judge. New evidence requires the Court to fix a lesser non-parole period as I have indicated.

I would dismiss the applicant's application and allow the appellant's appeal.

I certify that this and the preceding 11 pages are a true copy of the reasons for judgment of Winneke, P., Chernov, J.A. and O'Bryan, A.J.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 1 November 2002.

[1] R. v. De Macedo, Court of Criminal Appeal, 4th February 1993 (unreported) at 7.

[3] (1991) 53 A.Crim.R. 391. See also R. v. Rostrom (supra) at 101.

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