R v Rackley [2007] VSCA 169

3 The appellant had met his co-accused Fraser a few days before the offending commenced. On the day of the first robbery, the appellant, Fraser and Rule wished to purchase some heroin. At approximately 10.00am, Rule, together with the appellant and Fraser, drove to Stocklands Shopping Centre in Wendouree. Fraser attempted to obtain cash from an automatic teller machine at the Commonwealth Bank, but was not successful in doing so. After she returned to the vehicle, they drove to the southern end of Dowling Street in Wendouree. There they decided to commit an armed robbery at the Ampol service station, which is located on the corner of Dowling Street. Rule drew blood from his arm into a syringe and gave it to Fraser. Rule and the appellant told her what to say when she entered the service station. She also took a wooden chair leg with her, which she hid under her clothing. Fraser entered the service station holding the syringe in her left hand. She demanded money from the attendant, and walked behind the counter and took a quantity of money totalling approximately $300 from the till. She then ran out of the service station and returned to the car. There she gave the money to Rule. He rang his drug dealer in Melbourne. They drove to Melbourne, where Rule purchased heroin, using the proceeds of the armed robbery and some money of his own.

4 The second armed robbery, which occurred on the next day, took place at a Liberty service station in Norman Street, Wendouree. On that occasion the appellant drove Fraser to the service station. She entered the premises holding a blood-filled syringe in her hand. In her record of interview, she stated that the appellant had withdrawn that blood from her arm, because she was unable to do so herself. On the other hand, in his record of interview the appellant stated that when Fraser entered the service station to perform both robberies, he did not know that she was taking a blood-filled syringe with her; rather, he believed that Fraser was armed with a fishing knife which he kept in the back of his vehicle. In any event, after entering the service station, Fraser approached the console operator with the syringe in her hand, demanded cigarettes and told him to open the till. She said that she would give him two or three seconds to do so, otherwise she would stab him with the syringe. She pushed the syringe towards the operator in a stabbing motion. As a result, the operator opened the till and Fraser took all of the notes from it, totalling approximately $540.

5 Later on the same day, Fraser and the appellant were arrested by the police while leaving Ballarat and travelling towards Melbourne on the Western Highway. When interviewed by the police, they both admitted their involvement in the two robberies. In addition, Fraser admitted to the theft which she had committed on the Safeway store, and to which she also pleaded guilty.

6 After the appellant and Fraser had pleaded guilty, pleas in mitigation of sentence were presented on behalf of each of them. On behalf of the appellant, it was submitted that his role in the offences was relatively minor and that he was implicated in the robberies in order to assist Fraser to obtain money for heroin and also to obtain heroin for himself. The plea on his behalf mainly focused on the appellant's background and current medical condition. After leaving school, the appellant had completed an apprenticeship as a fitter and turner, and had remained in employment until he sustained a back injury in 2002. A medical report from the Ballarat Group Practice was tendered, which stated that the appellant suffered from severe chronic back pain due to spondylolisthesis of the lumbar spine and a minor lumbar disc prolapse. Those conditions had been confirmed on CT and MRI scans.

7 The appellant had a long history of drug abuse involving marijuana, amphetamines and heroin. After he suffered his back injury, the appellant also abused prescription drugs. He was married. His wife had three children by a previous relationship and the appellant had a close relationship with them. In addition, the appellant and his wife had a young two-year-old son. While he had been on bail, the appellant had participated in the Court Referral and Evaluation for Drug Intervention and Treatment program ("CREDIT"). A report from his bail case manager indicated that the appellant had been a willing participant in the program and that he had been open and frank about his substance abuse.

8 The appellant had come before the courts on three previous occasions. In October 1993 he had been fined for behaving in an offensive manner in a public place. In August 2000 the Ballarat Magistrates' Court sentenced the appellant to a term of one month imprisonment, suspended for a period of 12 months, on a charge of driving a motor vehicle while disqualified, and fined him on a charge of careless driving. In May 2005, the Ballarat Magistrates' Court sentenced the appellant to a term of one month imprisonment on a further charge of driving a motor vehicle while disqualified and suspended that sentence for four months. The court also adjourned, for a period of 12 months, charges of using an unregistered vehicle, assaulting a police officer, resisting a police officer, and being drunk in a public place.

9 By comparison, the co-accused Fraser had a more extensive list of previous convictions. Without setting them out in detail, she had a long list of convictions involving unlawful assault, assault by kicking, causing injury recklessly, assault with a weapon, intentionally threatening serious injury, burglary, damage to property, obstructing a police officer in the execution of his duty, and like offences. She had been before the courts on ten previous occasions. In addition, subsequent to the robberies, Fraser in December 2005 had been convicted and sentenced on a charge of loitering with the intention to commit an indictable offence, and had also been dealt with for breach of a community-based order. Fraser had previously served two terms of detention in a youth training centre.

10 In his reasons for sentence, the judge, in summarising the circumstances of the offences to which the appellant and Fraser had pleaded guilty, observed that the appellant, at the age of 31, would have readily appreciated that he was "setting up a girl of 17 to commit a serious offence". His Honour did not accept the explanation by the appellant in his record of interview that he wished to protect her by assisting her with the crimes. His Honour stated that the gravamen of the offending by the appellant was that he acquiesced and encouraged a girl of 17 to commit two armed robberies. The judge further stated that, by reason of the age difference between them, questions of parity with Fraser were of "limited importance or relevance".

11 His Honour sentenced the appellant to three years' imprisonment on each count of armed robbery. His Honour ordered that one-and-a-half years on count 1 be served cumulatively on count 2, making a total effective sentence of four-and-a-half years. He fixed a minimum non-parole period of two-and-a-half years.

12 In the case of the co-accused, his Honour sentenced Fraser to 18 months' imprisonment on each count of armed robbery and ordered that six months on count 2 be served cumulatively with count 1, making a total effective sentence of 24 months, such sentence to be served in a youth training centre.

13 I turn, then, to the grounds of appeal, which are six in number. As the second ground concerns the issue of parity, it is appropriate that I deal first with the other grounds before turning to it.

14 Ground 1 is that the judge failed to give sufficient weight to the appellant's back condition and the impact it would have on him in serving his sentence. Counsel relied on the report of the Ballarat Group Practice, which stated that the appellant's back injury limits his mobility and significantly affects his activities of daily living. In his reasons for sentence, the judge expressly accepted that the appellant would need medication for his back injury, and that to some degree any time spent in gaol would be more onerous on the appellant than on an ordinary prisoner. His Honour also accepted that the appellant would suffer greater discomfort from his back condition while incarcerated. However, his Honour stated that the conviction of the appellant on two counts of armed robbery diminished the degree of weight which could be given to personal considerations, when compared with the obvious need for passing a sentence which adequately caters for general and specific deterrence.

15 I do not consider that that approach to the appellant's medical condition discloses any error. The description by the trial judge of his condition did not fail to give due weight to it. His Honour was correct to observe that the principles of general and specific deterrence are of substantial importance in a case involving two counts of armed robbery occurring in circumstances such as in this case. In such a case, personal circumstances such as those described in the medical report, while relevant, were not of such weight as to require the imposition of a substantially reduced sentence. Thus, his Honour was correct in considering that the nature of the offending was such as to limit the weight which could be given to considerations of the type put forward on behalf of the appellant in relation to his medical condition.

16 Ground 3 is that the sentencing judge erred in concluding that the appellant had "acquiesced and encouraged" a girl of 17 years to commit two armed robberies. In support of that ground, it was submitted that his Honour failed to take into account that Fraser participated as a principal in the commission of the offences and that her role in those offences was significant. It was submitted by counsel that there was no evidentiary basis for his Honour to express the conclusions set out in the ground of appeal.

17 In my view, that argument may be readily rejected. The appellant pleaded guilty, and was sentenced, on the basis that he was acting in concert with Fraser, and also with Rule in respect of count 1. In the course of submissions made on the plea, counsel for the appellant accepted that the robberies were committed pursuant to a common purpose between Fraser and the appellant, and Fraser and the appellant and Rule in respect to the first robbery. The observation by his Honour that the appellant acquiesced and encouraged Fraser to commit the offences did not overstate the appellant's role in the commission of the offences; nor did it fail to take into account the circumstance that Fraser had participated as a principal in the commission of both offences.

18 Ground 4 is based on the observations by the judge that, in view of the differing ages of the appellant and Fraser, it would be readily appreciated that the appellant had "set up a girl of 17 to commit a serious offence". It was submitted that his Honour had no evidentiary basis for coming to that conclusion.

19 In her record of interview, Fraser stated that Rule was the instigator of the armed robbery on the Ampol service station. Fraser said little about the role of the appellant in respect of that robbery. Her relative silence in relation to the appellant is understandable in light of the facts. The three participants in the first robbery were being driven in Rule's vehicle. Rule took possession of the proceeds of the robbery immediately after it had been completed. It was Rule who established contact with a drug dealer from whom to purchase the heroin, and it was Rule who undertook the transaction by which the purchase of heroin was made from the proceeds of the robbery. Nevertheless, the appellant was a willing participant in the robbery. By his plea of guilty, he admitted that he had acquiesced in Rule inducing Fraser to undertake the robbery. No doubt Fraser was a willing participant herself in the robbery. However, the appellant knew that she was addicted to heroin. In addition, she was very much the junior of the three in terms of her age. The appellant and Rule, each mature adults, were parties to a decision that the 17-year-old Fraser carry out the robbery. Thus it was that counsel on the plea conceded that the appellant and Rule had got Fraser "to do their bidding" in order to decrease the risk to themselves. In essence, to use the vernacular, they, together with Fraser, decided that Fraser should do their "dirty work" for them. In that context, in my view, there was an appropriate basis for his Honour to consider that the appellant had set up Fraser. Similarly, in respect to the second robbery committed on the Liberty service station, it was the appellant who drove the vehicle in which he and Fraser travelled to the scene of the robbery. At the very least, he encouraged Fraser to participate in it and he assisted her to do so. In those circumstances, again, the statement that the appellant had set up the young 17-year-old to commit the robbery was not an inappropriate description of the appellant's role and participation in the second robbery. In my view, ground 4 is not made out.

20 By ground 5 it is contended that the sentencing judge made an error in his apprehension of the relationship between the head and minimum sentence. That ground is not based on anything which was said by the sentencing judge in his sentencing reasons, but rather is based on a comment made by his Honour in the course of sentencing submissions. During those submissions his Honour made remarks relating to the requirement that there should be a relationship between a head sentence and a non-parole period. In doing so, he referred to the decision of the Full Court of the Federal Court of Australia in R v Tait and Anor[1] It was submitted on behalf of the appellant that his Honour erred in taking the view that there was a necessary correlation between the head sentence and the minimum term, whereas the appropriate principle is that the minimum sentence should reflect the period of time which the sentencing judge considers a person should spend in confinement before becoming eligible for parole. In his written submissions, counsel referred to the recent decision of this Court in R v Alparslan[2], in which Kellam AJA (as his Honour then was), having reviewed the authorities, made it clear that there is no fixed relationship or proportionality to be maintained between a head sentence and a minimum non-parole period imposed by a sentencing judge.

21 The submissions made in support of this ground attach particular significance to one remark made by his Honour in discussion with counsel, that there must be "some recognition of proportionality between the minimum and the head sentence". It is important to bear in mind that that remark was made in the course of discussion with counsel. I doubt that it was meant to convey the judge's fixed and precise view of the relevant sentencing principles. In any event, the remark made by his Honour must be seen in its proper context. It was made in response to a suggestion by counsel that his Honour should provide for an extended period of parole. His Honour observed that such a suggestion offended against the principles stated by the Full Court of the Federal Court in R v Tait and Anor, in which it was stated that the head sentence and the minimum sentence are both part of the same sentence. His Honour observed that both the head sentence and the minimum sentence must have some relationship to the moral culpability of the offender.

22 In my view, seen in that context, the remarks by his Honour as to the relationship between the head and minimum sentences do not contain any error. The head sentence and the non-parole period are both parts of the same sentence. In fixing both the head sentence and the non-parole period, the sentencing judge must take into account the same sentencing considerations, including denunciation, general deterrence, specific deterrence and rehabilitation. The non-parole period is designed to assist in the rehabilitation of a prisoner. However, as emphasised by the authorities, including R v Tait and Anor, the determination of the lower period must not ignore the other sentencing requirements. Thus, in their proper context, I do not consider that the remarks of the sentencing judge made in the course of submissions, and to which ground 5 is directed, reflect anything other than what constitutes proper sentencing principles. For those reasons, in my view, ground 5 should fail.

23 The sixth ground of appeal is that the sentence was in all the circumstances manifestly excessive. In support of that ground, counsel placed particular reliance on the mitigating circumstances which had been demonstrated in the course of the plea. Those circumstances included: the appellant had entered a very early plea of guilty; unlike his co-accused, the appellant had not committed further offences while on bail; the appellant had a much less significant criminal history than the co-accused; the appellant had demonstrated positive prospects for rehabilitation; he had presented character material which militated against a severe sentence; the appellant's role in the offending was not a major or central role; and the appellant had a good work history and a positive involvement in the parenting of his son and his three step-children.

24 The offences to which the appellant pleaded guilty were serious criminal offences. The statutory maximum sentence for armed robbery is 25 years' imprisonment. The offences were committed in circumstances of some seriousness. The use of a weapon by an immature and troubled young woman, in need of money to support her heroin habit, was fraught with risk. Such an offence was one which was calculated to strike fear into the heart of the victims of the robbery and to cause considerable trauma to those involved. This type of offending is particularly prevalent. In cases such as this, there is a clear need for the imposition of sentences which are sufficiently substantial to act as both general and specific deterrents. Those who commit such offences must well understand that, if and when they are caught, they face lengthy sentences of imprisonment. It is correct that there were mitigating circumstances in the case of the appellant. His plea of guilty and his admissions entitled him to a degree of credit. Further, his background, his health and the steps which he had taken towards his rehabilitation all tended to mitigate the sentence which might otherwise have been imposed on him. Nevertheless, as observed in the authorities, extenuating circumstances of the type put forward on behalf of the appellant must be viewed by the sentencing judge in the context of the gravity of the offending in cases such as this. Notwithstanding the mitigating circumstances to which counsel for the appellant has referred us, those circumstances were not such as to lead to the conclusion that the individual sentences or the total sentence imposed on the appellant were manifestly excessive.

25 Given the gravity of the offences, the trial judge, in my view, reached the correct conclusion, both as to the sentences imposed in respect of each of the two offences to which the appellant pleaded guilty and also in respect of his determination of the total effective sentence and the minimum non-parole period to be served by the appellant.

26 Finally, I turn to ground 2, which is that the sentences imposed by his Honour offended the principles of parity when compared with the sentences imposed on his co-offender Fraser. The appellant submitted that the total custodial sentence imposed on Fraser was less than one half of that imposed on the appellant. Fraser's role in the two robberies was at least as significant as that of the appellant. Fraser had a more extensive criminal history than the appellant. She had been before the courts on many more occasions for many more offences than the appellant. Her previous record contained convictions for offences involving both violence and dishonesty. She had incurred a subsequent conviction while on bail, and the evidence as to her rehabilitation was not as strong as was the evidence in that respect in relation to the appellant.

27 The principles of parity are based on the simple concept that, so far as possible, there should be equality of treatment between co-offenders. The relevant principles which apply when a complaint of lack of parity is made on appeal are well established. Before an appellate court may intervene on such a ground, the disparity between the sentences must be manifest, and must be such as to give rise to a justifiable sense of grievance in the appellant and an appearance of injustice to the objective bystander.[3]

28 Clearly, the sentencing judge in this case distinguished between the appellant and Fraser because of the significant difference in their ages, and in particular because of the youth of Fraser. In my view, that circumstance was of itself a circumstance of substantial importance. The youth of Fraser was relevant in determining the sentences to be imposed on her for at least three reasons. First, it reflected on her moral culpability, particularly compared with that of the appellant, in respect of the offences. It is true that Fraser was an experienced offender. None the less, she was an adolescent on the verge of adulthood. The judge accepted that Fraser's past offending reflected her very unstable background throughout most of her childhood. By contrast, the appellant was a mature adult, married and with the responsibility for four children. He was a qualified tradesman. Until he was injured in 2002 he had participated full-time in the workforce. Clearly, by dint of their different ages and experiences, there was a significant difference in the moral culpability attaching to Fraser and the appellant in respect of their respective involvement in the same offences.

29 Secondly, the youth of Fraser compared with the age of the appellant was relevant to the question of specific deterrence. The sentencing judge was required to make an intuitive assessment, based on the materials before him, as to the term of incarceration which was appropriate in the case of each offender, in order to achieve a requisite measure of specific deterrence. The respective age of each offender was a relevant and important factor in respect of that aspect of the sentencing discretion.**

30 Thirdly, and most importantly, the principles of rehabilitation assume a particularly prominent role when sentencing young offenders, and much more so than in sentencing an adult offender in the position of the appellant. It is true that the question of rehabilitation does not always predominate when sentencing a young offender. None the less, in this case, in my view, the sentencing judge was entitled to place significant weight on Fraser's youth, with a view to ensuring that the sentence imposed on her was such that catered for the prospect of her rehabilitation as a young offender. Indeed, as noted by the sentencing judge, if the offences had been committed a few months earlier, then she could have been dealt with in the Children's Court under a different sentencing regime.

**31 For those reasons, I consider that the difference in the ages of the appellant and his co-offender Fraser, together with the youth of Fraser, justified a significant difference between the sentences imposed on both offenders. Taking those factors into account, I do not consider that the difference between their sentences was so manifestly excessive as to engender a justifiable sense of grievance in the appellant, and to give rise to an appearance of injustice to an objective bystander cognisant of all the facts of the case. The sentences imposed on the appellant are otherwise appropriate and well balanced. The sentences on the co-offender Fraser, while perhaps lenient, are understandable in light of her youth and in light of the principles of rehabilitation which are particularly relevant in her case. For those reasons, I am of the view that the differences in the sentences between the appellant and his co-offender were not such as to amount to an error in the exercise of the judge's discretion.

32 It follows that I consider that this appeal should fail and should be dismissed.

**33 I agree that the appeal should be dismissed, for the reasons which his Honour has given.

34 I want to draw attention to the remarks made by this experienced sentencing judge, about the delay which had occurred between the apprehension of the appellant and his matter coming on for a plea hearing. The history can be stated shortly. The offences were committed at the end of May 2005. Police statements were completed within a matter of days. The appellant had confessed to the crimes, but it was not until 13 months later, 20 June 2006, that the matter came on before this judge.

35 His Honour described the delay as appalling. His concern, eloquently expressed in the course of argument on the plea, was that it was most destructive for someone in the appellant's position to have spent time on bail, undertaking rehabilitative programs productively, when it was effectively inevitable, given the seriousness of the offences, that he would be sentenced to a jail term.

36 His Honour said that he had raised concerns of this kind for years, "but nobody listens to me". I share his Honour's concern. It seems appropriate, therefore, to record and endorse those concerns, so that those in a position to prevent delays of this kind can do something about it.

[1] (1979) 46 FLR 386.

[2] [2007] VSCA 3.

[3] See R v Stirling [2000] VSCA 8 at [40], per Winneke P; R v Taudevin [1996] VICSC 7; [1996] 2 VR 402 at 404, per Callaway JA.