R v Ponton [2001] VSCA 36

7. The appellant, Jason Rex Ponton, pleaded guilty on arraignment in the County Court on 4 August 2000 to one count of armed robbery and admitted 20 previous convictions or findings of guilt from four court appearances. The maximum penalty for armed robbery is imprisonment for 25 years. The judge heard a plea in mitigation of penalty during which the appellant's mother gave evidence and various certificates, references and the like were tendered. On 11 August 2000 he sentenced the appellant to be imprisoned for a term of four years and six months and fixed a non-parole period of three years. He declared that the period of 157 days should be reckoned as already served under the sentence.

10. The appellant appeals pursuant to leave granted by a single Judge of Appeal on 27 October 2000. The grounds of appeal are that the sentence was manifestly excessive and that the sentencing judge failed to take into account the appellant's "chance for rehabilitation in the future".

13. The essential facts of the offence are as follows. Shortly before 3 a.m. on Saturday 4 March 2000 the appellant entered a service station in Deer Park. He had taken with him a sports bag, had armed himself with a metal claw hammer and had disguised himself with a balaclava fashioned from some tracksuit pants. He had decided to go to the service station to rob it of money and cigarettes. On entering, he confronted the sole attendant in the store at the time, a male. He demanded cash, telling the attendant that he did not want to hurt him. He held the hammer up to show the attendant. The latter, believing he would be hit, gave the appellant access to the cash register and the appellant took money out of the till and placed it in the sports bag. He then told the attendant to take the money out for him. As he said that, he pointed the hammer at the attendant. The latter complied. The appellant

made a demand for cigarettes. The attendant started to put cigarettes in a shopping bag for the appellant. The appellant then asked for the attendant's wallet and car keys. The attendant said that he did not have a wallet. The appellant pointed the hammer at the attendant, causing the attendant again to think that he would be hit with it. The attendant grabbed the hammer in an effort to protect himself and a struggle ensued, lasting approximately five minutes, at one point of which the hammer was placed over the attendant's neck. He ripped off the appellant's balaclava, exposing his face to the security camera. The attendant had also activated the security hold-up alarm. Eventually the appellant let the attendant go and attempted to pick up several packets of cigarettes that had dropped to the floor during the struggle. He then left the store but quickly came back to ask for a cigarette lighter, which was supplied. He then left finally.

17. Approximately $800 in cash and $800-worth of cigarettes were stolen by the appellant. The store attendant suffered some relatively minor injuries. More importantly, as a result of the armed robbery he lost his sense of security and is not prepared to work night shifts.

20. The appellant was identified from video footage and was contacted by police by telephone from the home of his mother, where he had been living and where the police had gone to execute a search warrant. In due course he surrendered himself to police, forestalling inevitable apprehension. He was interviewed on 7 March 2000 and was co-operative and made full admissions. He gave as his reasons for committing the armed robbery the need for money to spend on his daughter and the fact that he was affected by drugs.

23. The appellant was aged 26 at the time of offending, having been born on 9 February 1974. Amongst the prior convictions admitted by him were armed robbery, intentionally causing serious injury, intentionally or recklessly causing injury (two counts), attempted armed robbery, intentionally or recklessly causing injury (a further count), attempted burglary, making threats to kill and false imprisonment (two counts). For those offences the appellant had been sentenced in the County Court at Melbourne on 25 November 1994 to a total effective sentence of six years' imprisonment with a non-parole period of four years. The subject offence was committed while the appellant was on parole for those offences, after he had served some 21 months on parole. His Honour, having had s.16(3B) of the Sentencing Act 1991 drawn to his attention, declined to direct otherwise for the purposes of that provision, which can only be done on the ground of the existence of exceptional circumstances. Consequently, the sentence which he imposed is to be served cumulatively on any period of imprisonment which the appellant may be required to serve in custody in a prison on cancellation of the parole order. The offences for which the appellant was sentenced in November 1994 were described by his counsel on the plea, twice, as "very serious". His Honour was told that those relating to the false imprisonment involved "hijacking" of a car and that the appellant had used a screwdriver. At the time of those offences the appellant was 20 years of age.

26. His Honour found that the appellant was remorseful and took into account the fact that he pleaded guilty at the first opportunity. He accepted, in the main, the evidence of the appellant's mother as accurate. She described the appellant's background and detailed the circumstances in which he had ceased working and, because of his involvement with an older, alcoholic, woman, had resumed his use of marijuana and alcohol. She also gave evidence of the appellant's difficulties in prison since his arrest for the present offence and in fact said that he was in protective custody. Mrs Ponton stated that the appellant had not been in trouble with the prison authorities and indeed had been a great help to young offenders. She also gave evidence that the appellant was very close to his daughter, who had been born of an earlier relationship, apparently before the appellant turned 20.

29. Having reviewed the matters which I have summarised and other matters, his Honour expressed the opinion that both specific and general deterrence must be fully taken into account in sentencing the appellant. He continued:

"As to rehabilitation, notwithstanding the remorse, I am unable to take the view that, bearing in mind all the circumstances, including the fact that you committed this crime while on parole, there is any reasonable prospect of rehabilitation by you."

33. I turn to the grounds of appeal, taking first that relating to rehabilitation. It was submitted that his Honour's finding on this topic, or more accurately his Honour's expressed inability to be satisfied of a reasonable prospect of rehabilitation, was erroneous. Reliance was placed on the early plea of guilty, the appellant's remorse, a letter of apology sent to the service station proprietor, strong family support, the appellant's completion of a drug program and a relapse program, his counselling of young offenders in prison, the view of a psychologist with the Victorian Institute of Forensic Mental Health that the appellant would benefit from psychological counselling and support, the fact that the appellant had remained out of prison for 21 months before re-offending, and his age. I am not persuaded that his Honour erred in not being satisfied of any reasonable prospect of rehabilitation, not, it is to be noted, no prospect. Against the factors relied on must be put the fact that the commission of this further armed robbery while on parole for a large number of offences including armed robbery and attempted armed robbery. I note also that Mrs Ponton gave evidence that while he was in prison for the earlier offences the appellant had told her that he would never go back to gaol, saying, "I promise you I'll never, ever". Despite that expressed resolve, he slid back into crime through unemployment due to drugs and alcohol. So his Honour was entitled, I consider, to decline to rely on indicia of prospective rehabilitation listed earlier. I would add that it may well be that his Honour made some allowance for prospects of rehabilitation, at least in fixing the non-parole period, as Mr Ryan for the respondent argued.

36. In support of the ground that the sentence was manifestly excessive it was submitted that the offence "must be at the lowest end of an armed robbery charge". It was said that the appellant's "only" weapon was a hammer and that he made it very clear from the outset that he did not intend any harm to the attendant, and it was claimed that the offence was "totally unsophisticated". It was submitted that the sentence did not reflect the fact that the appellant would be serving his term of imprisonment in protection. Reliance was placed upon the appellant's young age at the time of offending and it was submitted that it was in the interests of the public that the appellant's sentence should reflect rehabilitation. It was also said that the sentence failed to take into account the additional time that the appellant would spend in custody as a consequence of his breach of parole. Although that was put under the heading of totality, I think that it is a matter which, if made out, may be taken into account under the ground now under consideration.

39. It has repeatedly been pointed out that whether a sentence is manifestly excessive does not admit of much argument. Having considered the submissions which I have summarised and the other submissions, both written and oral, put for the appellant, I conclude for reasons I shall indicate that the sentence was not manifestly excessive, but rather was within the range of sentences open to his Honour in the exercise of a sound discretionary judgment. In essence, my principal reason is that armed robbery is a very serious offence as is shown by the maximum fixed by Parliament and the decisions of this Court and other courts. It is all too prevalent and the courts have stated time and again that it merits stern punishment in which the personal circumstances of the offender are not too readily to mask the features of the crime, features, I may say, largely found here in the kind of victim selected. See, for example, R. v. Orlikowski[1]. In passing I mention that Mr Simon drew attention to the views expressed in that case about the sentence there under consideration. It is sufficient to point out that the offence there was in fact an attempted armed robbery and that the maximum penalty for that offence was then 15 years' imprisonment. I would accept that this armed robbery was rather unsophisticated, but I do not consider it to be at the lowest end of the scale. It was committed in the early hours of the morning, on a defenceless person who was working alone. The hammer was clearly used to threaten or intimidate the attendant and was in itself a weapon capable of inflicting much harm. The appellant was disguised. That the appellant asserted at the time that he did not want to harm the attendant is not of great weight, given the risks. Events can get out of hand and indeed the attendant did suffer minor injuries, though not it would seem, from the hammer itself. If, as the appellant told the police when interviewed, he had ingested some marijuana before offending and his reason for engaging in the offence was to enable him to have some money to spend on his daughter's birthday, those facts, whilst explanatory, are not mitigatory. It is not apparent to me that the appellant's sentence would all be served in protection. I find no need to deal with the respondent's submission that, because of its origin, the protective custody in this case is irrelevant. The principle of ordinarily giving primacy to rehabilitation in the case of a youthful offender is inapplicable to a person of the appellant's age, and in any case the nature and circumstances of this offence would render the principle of little significance. The appellant's significant prior offending, whilst it cannot be given such weight as to lead to the imposition of a penalty disproportionate to the gravity of the instant offence, is relevant to show that the appellant has manifested in his commission of the instant offence a continuing attitude of disobedience to the law, so that retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted than would otherwise be the case: Veen v. The Queen (No.2)[2].

42. I have so far in expressing my own reasons dealt with several of the arguments put in support of this ground, but one matter requires special mention before I finish with the ground. Perhaps most of the argument today was concerned with the fact that this offence was committed while on parole. In support of the ground that the sentence was manifestly excessive, Mr Simon in substance argued that his Honour had infringed the principle of totality by not either ordering otherwise within s.16(3B) or imposing a shorter sentence. In my opinion, neither the fact that the offence was committed on parole, even seven-eighths of the way through the parole period, nor the potential liability to which the appellant was thereby exposed under s.77(7)(b) of the Corrections Act 1986 can, in itself and without more, be an exceptional circumstance within s.16(3B) and no ground was shown for the favourable exercise of discretion under that sub-section. As regards totality, his Honour was correct, in view of s.5(2AA)(a) of the Sentencing Act, to refrain from speculating about how the Parole Board might act under s.77(7)(b) if it cancelled the

appellant's parole. On my reading of the transcript of the plea and sentence, his Honour took into account the fact that he was not ordering concurrency and, obviously, the very terms of s.16(3B) relating to cumulation. His Honour's sentence properly reflected that matter and was not manifestly excessive on that account.

[1] Unreported, Court of Appeal, 16 October 1997.