R v Pratt [2003] VSCA 186

Court of Appeal (Vic)|2003-10-31|Before: WINNEKE, A.C.J., PHILLIPS and EAMES, JJ.A.

CRIMINAL LAW - Sentence - Armed robbery - "Soft target" - Service station shop assistant threatened with blood-filled syringe - Applicant a Hepatitis C carrier - Applicant 34 years old - Serious prior convictions but none for nine years - Remorse and prospects of rehabilitation - Head Sentence of five years (non-parole period three years and six months) said to be highest for similar offences dealt with by Court of Appeal - Held, not manifestly excessive.

I will invite Justice Eames to give the first judgment in this appeal.

Upon his plea of guilty the appellant was sentenced by a judge of the County Court on 30 August 2002 with respect to one count of armed robbery contrary to s.75A(1) of the Crimes Act 1958. He was sentenced to five years' imprisonment and ordered to serve three years six months before being eligible for parole. The offence carried a maximum penalty of 25 years' imprisonment.

The offence occurred on 24 February 2002 when the appellant entered the shop at a Caltex service station in Laverton North armed with a syringe filled with his own blood. The appellant threatened the service station attendant by shouting at him and demanding that he give the appellant money from the till. The attendant handed him cash amounting to $390 and the appellant departed the store. After leaving the store the appellant rang a friend who picked him up in a taxi. Thereafter, the appellant obtained heroin which he paid for out of the proceeds of the robbery.

At the time of the offence, the appellant was aged 34 years and was aged 35 at the time of sentencing. He admitted 20 previous convictions and, additionally, two findings of guilt from 11 court appearances. Among the prior offences were a number of motor vehicle offences and two offences of dishonesty. The more important appearances were, first, a conviction for manslaughter in 1986 for which the appellant was sentenced to six years' imprisonment with a non-parole period of four years and, secondly, in April 1993 he was convicted on counts of damaging property, causing injury intentionally and conduct likely to cause serious injury, for which offences he was released on a community-based order for a period of 12 months. Since April 1993 he appeared in court on three further occasions but on each case they were offences related to the operation of a commercial motor vehicle.

Thus, for a period of some nine years prior to this offence the appellant had not committed any offences of a violent or dishonest character.

The appellant was arrested for this offence two days after it was committed and gave a full and frank confession in his interview with police. He pleaded guilty at an early stage, namely, at the time of the hand-up committal proceedings. Leave to appeal against sentence was granted on 30 May 2003. The following grounds of appeal are outlined in the notice:

"1. That the sentence was manifestly excessive in all the circumstances of the case.

2. That the learned sentencing judge failed to give due weight to factors personal to the applicant/appellant, including his prospects for rehabilitation.

3. That the learned sentencing judge gave undue weight to the applicant/appellant's previous criminal history."

Mr Boyce, who appeared as counsel for the appellant, treated grounds 2 and 3 as particulars of the broader complaint of manifest excess which was the ground relied on.

Central to his submissions was the proposition stated by Mr Boyce that the head sentence of five years was the heaviest sentence for this particular genus of armed robbery to come before the Court of Appeal. That that was the case was not disputed by Ms Carlin, who appeared with Mr Sonnet for the respondent. Whether there had been instances of similar or heavier sentences imposed in the County Court which had not been the subject of appeal was not known by counsel. Mr Boyce submitted that a proper appreciation of the offending conduct in this case and of the factors personal to the appellant reflected that it was simply insupportable that his case should attract a heavier sentence for offences of this particular kind. The manifest excess is highlighted by that fact, he submitted.

Mr Boyce identified the following matters as being important ameliorating factors for sentence: the early plea of guilty, the appellant's co-operation with police, including his full confession, his good employment history, his efforts to effect his rehabilitation, including participation in counselling and his cessation of heroin use, the absence of prior convictions over a substantial period, the circumstances in which this offence was committed, his remorse and insight into the seriousness of his offence, and his medical condition. Many of those factors were expanded upon in a report by forensic psychologist Mr Ian Joblin which was tendered on the plea.

I deal first with the prior convictions of the appellant. Mr Boyce submitted that the learned sentencing judge gave undue weight to those convictions and failed to give them a proper context when sentencing the appellant. The appellant had been convicted of manslaughter (having been charged with murder but acquitted on that count) when he was only 18 years of age. He had stabbed a man in a disturbance in a hotel in circumstances where the appellant considered that he was protecting the interests of his sister. As Mr Joblin noted, one of the consequences of him being charged with that offence was that the appellant's father, being unable to cope with the situation, departed Australia and has not returned to the country and has had no further contact with the appellant since that time. The appellant's two sisters, both of whom were in the hotel at the time of the killing, also ceased to have any contact with the appellant and, because the appellant's mother did not adopt the same hostile position, ceased to have any contact with their mother. The appellant remained close to his mother. Upon release from prison, he moved to Western Australia and obtained work.

In April 1993, in Victoria, he was convicted of the three offences, including intentionally causing injury to which I have earlier referred. He was then aged 26 years. That incident arose when he went to support a friend who was involved in an altercation. He was charged on the basis of acting in concert rather than for any particular action on his own part. He complied with the terms of his community-based order, a penalty which suggests that his own offending on that occasion could not have been of particular seriousness.

The appellant has a number of convictions which point to the fact that he had an alcohol problem over a number of years, but upon his release from prison in mid 1988 he virtually ceased to drink alcohol, doing so only on limited occasions. When interviewed by police for the present offence, the appellant said that he committed the robbery to support a heroin habit on which he spent between $50 to $100 per day. At the time of sentencing, however, the appellant said that he was not addicted. In about 1995, whilst in a relationship with a heroin user, he commenced occasional use of heroin but had not been addicted to it at any time. He told Mr Joblin he used heroin to overcome health and emotional difficulties he was facing and in order to relax, and that his decision to commit the robbery so as to obtain funds with which to purchase heroin was one taken on the spur of the moment. He said that when he committed the offence he was depressed about events, including the break-up of his relationship and his unexpected loss of employment. That last matter was relied on by Mr Boyce as a factor which reduced the moral culpability of the appellant.

Mr Boyce submitted that the appellant had a good work history, having worked in the trucking industry, mainly as a driver, throughout his working life. As he told Mr Joblin, he was proud of his status as a professional truck driver and truck driving was his life. He lived in his truck when travelling interstate, as he had been until shortly before this armed robbery.

This offence occurred after the appellant had just arrived in Melbourne, having hitched a lift from Brisbane. He had been in Brisbane in pursuit of his occupation as a truck driver and he had had an altercation with a police officer who required him to move his truck from a position where it was parked. The appellant had been drinking, intending to later sleep in his truck, but complied with the request and immediately he did so he was charged with drink driving by the police officer. As a result of that charge, he was dismissed from his employment. In his report, Mr Joblin said that the appellant believed that he had been set up by the police officer and that by being loyal to his employer in moving the truck, rather than having it impounded, he had lost his job. Mr Joblin said that the loss of employment was of particular significance as his employment was important to him in dealing with health problems which he faced. The appellant had been diagnosed with Hodgkin's disease and had been receiving chemotherapy for eight months in 2001. Notwithstanding that treatment, he continued to work. He was in remission when he was sentenced.

Mr Boyce relied upon a statement of Mr Joblin that had the incident with the police not occurred, there was a high probability that the armed robbery offence would not have been committed. Although, in one sense, that may have been so - in that the offence may well have been committed when the appellant was feeling a sense of depression and frustration due to the circumstances in which he lost his job, and the other matters which I have addressed - those circumstances offer no amelioration of the seriousness of the offence which was committed. Nor, in my view, is the moral culpability of the appellant reduced by those circumstances which preceded his offending.

The appellant impressed Mr Joblin, who described him as impressive in his presentation and said that he did not seek to minimise the seriousness of his offending and expressed remorse for the distress he caused to the service station attendant. Mr Joblin said that the present offence ought not be seen as simply an extension of his past criminal conduct. The earlier offences had been committed when he was young, drinking to excess and acting irresponsibly, but he had successfully altered his life since his release from prison in 1988, Mr Joblin said.

The appellant deserves credit for his efforts since 1988 to turn his life around, and also for his efforts towards rehabilitation since he committed this offence. After his arrest, the appellant spent some months in custody and then was released on bail. It is again to his credit that he attended counselling courses and ceased the use of heroin. Mr Boyce conceded that all of these matters personal to the appellant were taken into account by the learned sentencing judge, but he submitted that those factors were overwhelmed, unreasonably so, by the emphasis placed by his Honour on the prior convictions of the appellant. In dealing with his prior convictions, the judge noted the offences of violence in 1986 and 1993 and said of them:

"I was informed the manslaughter conviction followed on a stabbing of the victim in the course of a fight, and the injury offence arose out of the driving of a motor car. It is quite clear you have been prepared to engage in violent antisocial conduct."

As strong as that language is, it is no more than a statement of fact. Although it is suggested that his Honour had failed to have regard to the substantial period of time which had elapsed since those offences were committed, that does not appear to me to be the case. His Honour expressly noted the appellant's age at the time of those offences.

This offence was a typically impulsive example of a form of armed robbery, on soft targets, which is very prevalent. The use of a blood-filled syringe is likely to intimidate persons threatened thereby, as it did in this case. The service station attendant was particularly fearful that he might contract a disease were he to be pricked by the syringe. He did not know how real that threat was because the appellant was infected with hepatitis C at the time of the offence. The appellant knew that to be the case when he decided to commit this robbery and, although he denied that he would have struck the attendant with the syringe, the risk remained that that could occur and he plainly decided to take that risk.

20 This Court has, on many occasions, stated that offences of this type are prevalent and that because of their seriousness, mitigating factors personal to the offenders must, to a degree, give way to the primary purpose of punishment for such offences, namely, deterrence[1].

I return to Mr Boyce's submission that this sentence is at the top of the range of sentences for like offences. If five years is indeed the highest sentence imposed for such an offence, then it constitutes only 20 per cent of the maximum penalty available. However, whilst this Court may not have considered sentences which were higher, it does not follow, in my opinion, that similar sentences for offenders with similar prior convictions and antecedents have not been imposed by judges in the County Court. The very experienced judge who imposed this sentence would have been very well aware of sentencing practices in the County Court.

In so far as sentences dealt with in the Court of Appeal have been less than five years, that may well be explained by the fact that in very many instances the offence was committed by youthful drug addicts. Although considerations of youth and rehabilitation must assume less prominence in cases involving such serious offending, those factors would nonetheless ameliorate the sentence which might otherwise be provided. In this case, the appellant is neither a drug addict nor a youthful offender. He is now aged 35 years and he committed a serious offence on the spur of the moment to obtain cash for heroin to ease his sense of despair and depression.

Although the sentence was a stern one, the learned sentencing judge had full regard to all of the relevant matters which were addressed to him in mitigation of sentence. I have some sympathy for the appellant, in that he had made genuine endeavours to change his life from that of his early days, and this spur of the moment decision was a disastrous error of judgment, but having made it, he cannot escape his past.

In my view, it cannot be said that the sentence imposed here was outside the range of sentences which the learned sentencing judge could reasonably impose. The sentence is not manifestly excessive, in my opinion, and none of the grounds of appeal have been made out. Accordingly, the appeal against sentence should be dismissed.

The formal order of the Court is that the appeal is dismissed.

[1] See R. v. Cotry [2002] VSCA 13 at [8]; R. v. Ray [2001] VSCA 61 at [7].

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