R v Riem [2007] VSCA 283

Court of Appeal (Vic)|2007-11-29|Before: CHERNOV, VINCENT and NEAVE JJA

Criminal law - Sentencing - Recklessly causing serious injury - Armed robbery - Being a prohibited person in possession of an unregistered firearm - Second presentment containing counts of armed robbery, attempted armed robbery and being a prohibited person in possession of an unregistered firearm - Manifest excess - Relevant prior convictions - Totality - Appellant subject to parole order at time of sentencing - Subsequent cancellation of parole order - Fresh evidence - R v Piacentino and Ahmad [2007] VSCA 49; (2007) 15 VR 501 - Appeal allowed - Appellant re-sentenced.

2 The appellant pleaded guilty (on presentment No C0604296) in the County Court at Melbourne, on 4 December 2006, to one count of recklessly causing serious injury, one count of armed robbery and one count of being a prohibited person in possession of an unregistered firearm. These offences were committed on 11 December 2005.

3 He also pleaded guilty (on a separate presentment no T03040878) to one count of armed robbery, one count of attempted armed robbery and one count of being a prohibited person in possession of an unregistered firearm.

4 He admitted 27 prior convictions arising from eight court appearances before the Children's and Magistrates' Courts between 30 July 1997 and 17 January 2005. In addition to offences relating to the possession and use of drugs, there were, in his criminal history, three convictions for the possession of a regulated weapon, three for assault, one for affray, one of burglary, three of theft, and notably for present purposes, a conviction for armed robbery.

5 After hearing a plea in mitigation of penalty, the sentencing judge, on 5 December 2006, made the following orders:

Her Honour directed that six months of the sentence on count 1 be served cumulatively upon that imposed on count 2. This order created a total effective sentence on this presentment of four years and six months' imprisonment.

Her Honour directed that six months of the sentence on count 2 be served cumulatively upon that imposed on count 1 making a total effective sentence on this presentment of four years.

**6 Her Honour then ordered that two years of the effective sentence imposed on presentment no T03040878 be served cumulatively upon that imposed on presentment no C0604296.

7 The outcome was an overall effective sentence of six years and six months' imprisonment. Her Honour fixed a non-parole period of four years.

8 The appellant was at the time of sentencing subject to a parole order relating to his earlier offending, which, if cancelled, rendered him liable to approximately two years' imprisonment to be served cumulatively upon the terms imposed by her Honour. However, the judge was not able, as a matter of law, to take this possibility into account. There is no need to expatiate upon why this is so, and sufficient, I think, simply to refer to the provisions of s 16(3B) of the Sentencing Act 1991 and the decision of the Court in R v Piacentino and Ahmad.[1] In the event, the Parole Board did act and cancelled the order, with the consequence that, for practical purposes, the appellant became subject to a head sentence of eight years and six months, with a non-parole period of four years.

9 Having been granted leave by a judge of this Court to do so, on 7 September 2007, the appellant submits that -**

In all the circumstances the individual sentences, the total effective sentence imposed upon him and the non parole period fixed by the sentencing judge are manifestly excessive;
The learned judge erred in her application of the principle of totality; and
That the subsequent cancellation of the parole order to which the appellant was subject at the time of sentencing constitutes fresh evidence that necessitates reconsideration of the exercise of sentencing discretion.

**10 The circumstances relating to the commission of the offences with which we are here directly concerned have been set out in the summary provided to the sentencing judge and I understand that there is no controversy concerning them.

11 On Sunday 11 December 2005, the victim of the offences encompassed by presentment no C0604296, Dong Tran, was contacted on his mobile phone by the appellant, who he knew as 'Chena.' Tran had been acquainted with the appellant for about two months, the two having met through a mutual friend, and Tran had sold heroin to the appellant several times, the first sale taking place on the day after they were introduced.

12 On the occasion with which we are here concerned, the appellant and Tran arranged to meet at a service station near Box Hill High School. On Tran's arrival he found that the appellant was already there. The appellant opened Tran's car door and sat in his passenger seat, where they negotiated the sale of heroin.

13 Tran later told the police that the appellant wanted to buy 0.4 grams of the drug for $130 - the standard price being $150. Given that he was $20 short, Tran took away some heroin and received $130.

14 At this stage, the co-accused, To, who Tran did not know at the time, approached the passenger side door and told Tran that he had a friend who wanted to buy heroin by the gram or in larger quantities. Tran indicated that he could not supply these amounts. To then produced a kitchen knife with a wooden handle, while the applicant pulled out a silver-coloured revolver (count 3).

15 The appellant accused Tran of previously selling him Naltrexone instead of heroin and claimed that it almost killed him and his brother - referring to To. At this point, To leaned into the car through the passenger door and stabbed Tran near his left collarbone with the knife (count 1). A struggle ensued, in the course of which a third and unidentified person opened the driver's door and removed the keys.

16 In response to a demand by the appellant and To for money and heroin, Tran handed over the heroin that he was about to give to the appellant. The appellant also removed two tin containers from the glove box and the $130 (count 2). The third person took Tran's Nokia mobile phone.

17 Tran was then left bleeding heavily from the upper chest and hand as the men drove off.

18 Tran was initially seen by Dr Paul Hancock at the Nunawading Family Centre between 6.00pm and 7.00pm that evening. Dr Hancock observed that he had a stab wound to the left anterior chest wall, just below the collarbone. This was complicated by a collapsed lung. Tran had also received some cuts to his left hand, and he was transferred to hospital.

19 The appellant was arrested on 24 December 2005 in relation to these matters. He was subsequently interviewed on 11 January 2006 and made no admissions. He was formally charged on 8 February 2006 and remanded in custody.

20 I now turn to the offences set out in presentment no T03040878.

21 On 23 December 2005, at approximately 8.30pm, the appellant was at the bus stop area outside Dandenong Plaza on McCrae Street, Dandenong. He approached a group of four males that included a person identified in the judge's sentencing remarks as 'Ahmed' and drew a silver-barrelled imitation handgun from his pants (count 3) which he then pointed at them.

22 The appellant demanded that they give him money (count 2). When all denied having any, he turned and pointed the gun towards Ahmed, who was crouched on the ground and moving away. Ahmed ran across McCrae Street to avoid him.

23 The appellant, with the handgun partly in his pocket but still visible, then approached a fifth male, Tarun Sadhwani, who was holding a black folder satchel. The appellant asked Sadhwani how much money he had and when the reply was 'nothing', the appellant snatched the satchel and walked away (count 1). Sadhwani requested him to return it. The appellant responded by head-butting him and delivering one to three kicks to his face, resulting in the sustaining of a blood nose by Sadhwani.

24 The appellant then continued across McCrae Street. Sadhwani threatened to call the police, prompting the appellant to quickly search the bag and then throw it back.

25 At 3.30am on the following morning (24 December 2005), at the Coles supermarket on the Princes Highway in Dandenong, the appellant became involved in an altercation with an unidentified male, in the course of which a number of punches were thrown by both parties. During this incident, he produced the imitation handgun and pointed it at the other male (count 3).

26 That person then entered the Coles store, followed by the appellant, who pointed the gun and attempted to punch him. A nearby security officer, Pati Ah Ta, believing the gun to be real, grabbed the appellant from behind, forcing him against a wall. The appellant dropped the handgun and was taken out of the store on to the footpath by Ah Ta. The appellant then grabbed a pen out of the security officer's pocket and swung it about in a manner suggesting that he was trying to stab him. During this altercation, Ah Ta was punched a number of times to the chest and face.

27 The male with whom the appellant had been in dispute left the store and was never located. The appellant attempted to go after him but was held by Ah Ta until he was able to break free a short time later.

28 The imitation handgun was retrieved and given to the police upon their arrival. A search of the nearby area located the appellant. He was arrested and interviewed at the Dandenong police station, where he denied any involvement in or knowledge of the incident at Dandenong Plaza, but made some admissions in relation to the altercation at Coles.**

**29 These grounds can be conveniently considered together.

30 In support of the claim that the individual sentences, the total effective sentence and the non-parole period fixed by the sentencing judge are all manifestly excessive, it was asserted that, whilst her Honour acknowledged in her sentencing remarks that the appellant's drug use had been a 'major factor underlying' his offending, and although it appeared apparent that his involvement with drugs had escalated since his mother's death in 2000, the significance of this addiction upon his life generally and the commission of the particular offences was not reflected in the sentences handed down. It was further argued, in the written submissions filed on his behalf, that -**

In this case, the drug addicted appellant was attending upon his supplier in order to purchase more heroin. Not only was he in the grip of the drug, and reliant upon the victim for supply, he believed the victim had duped him. The appellant was twenty dollars short of the purchase price. The consequent criminal activity was serious indeed however in all its circumstances, including those personal to the appellant, an overall sentence of four and a half years is more than stern and exceeds the acceptable range.

The orders for cumulation, particularly the cumulation ordered between the two presentments resulted in a head sentence and non-parole period which was manifestly excessive. Whilst each presentment dealt with separate matters, there was a degree of commonality between them namely illicit drug use and abuse, along with evidence of the illicit use clouding and affecting the appellant's judgment, particularly where Presentment C0604976 is concerned.

The overall sentence of 6 years and 6 months and non-parole period are excessive when sufficient regard is paid to the matters in mitigation listed above together with;

The appellants pleas of guilty;
The appellant's remorse;
The appellant's prospects of rehabilitation;
The appellant's age;
The appellant's background.

**31 I am far from persuaded that there is substance in these complaints, whether considered separately or in combination.

32 It is apparent upon perusal of her Honour's sentencing remarks that careful attention was given to all relevant sentencing principles and factual circumstances. I have detected no error with respect to any of them. In relation to the particular matters to which our attention has been drawn, I observe that her Honour adverted specifically to the appellant's plea of guilty and accepted that implicit in it was his sense of contrition.

33 With regard to the appellant's prospects of rehabilitation, the sentencing judge stated:**

You are still a relatively young man. In my view, rehabilitation is still an important element of sentencing. I suspect that the road ahead is a difficult one given your entrenched drug use and prior history but it is simply a reality that you will be released back into the community a relatively young man and therefore it is in the community's interest as well as your own that rehabilitation is pursued. There is some cause for hope in this regard demonstrated by your ability to remain drug free and in gainful employment in Queensland while you were on parole. It seems that removed from familiar temptation, you are able to make gains and arrest your drug use which has been a major factor underpinning your ongoing offending. I have been told that once paroled in relation to this matter, you would again like to go to Queensland in the hope of replicating and consolidating your prior efforts at rehabilitation.

There can be no doubt that, when regard is had to these matters, appropriate emphasis was placed upon the consideration of the appellant's rehabilitation.

**34 Her Honour was, as can also be seen from this passage, clearly mindful and sensitive to the appellant's age and background. Regrettably, as is so often the case in matters before this Court, he had had a difficult childhood, one that involved turmoil in family relationships and culminated in the suicide of his mother in 2000, in the context of the breakdown of his parents' marriage.

35 The task of a sentencing judge is seldom easy, and this case constitutes no exception. Bearing in mind the seriousness of the offences themselves, the circumstances surrounding them, and the appellant's history, in my opinion, the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period fixed were all available in the proper exercise of sentencing discretion and none bespeaks error.**

36 The appeal has been argued before us on the basis that the decision of the Parole Board, which was made subsequent to the imposition of the sentences, substantially altered the position from that addressed by the sentencing judge and raises issues of the kind recently considered by the Court in R v Alashkar and Tayar.[2] It was accepted by the Crown that the subsequent cancellation of an appellant's prior parole order to which the appellant was subject at the time sentence was imposed constitutes fresh evidence as that term is used in the authorities, and that the possible intervention of this Court must be considered. Of course, as the Court pointed out in Alashkar and Tayar, it does not necessarily follow that there will be intervention, or that any different sentence should be imposed. In the present case, although, as I have stated, I consider that the sentences imposed upon the appellant were clearly available in the proper exercise of discretion, I agree that there is force in the contention advanced by the appellant's counsel that the subsequent cancellation of the parole order had the effect of rendering the total effective sentence manifestly excessive. I would allow the appeal on this basis.

37 I propose that the sentences and orders for cumulation made in the court below be set aside and that the appellant be re-sentenced as follows:

I would order that six months of the sentence on count 1 be served cumulatively with that imposed on count 2. The total effective sentence on this presentment would then be three years and six months' imprisonment

38 On presentment no T03040878, I would impose -

I would order that six months of the sentence on count 2 be served cumulatively with that imposed on count 1. This would create a total effective sentence on this presentment of three years' imprisonment.

**39 I would direct that 18 months of that effective sentence be served cumulatively upon that imposed for the offences on the other presentment. This would create a total head sentence of five years, in respect of which I would fix a non-parole period of four years.

40 The result of these orders would be that the appellant would be subject to an overall period of incarceration of seven years, with an eligibility for release on parole after serving four years.

The sentences imposed below on presentment no C0604296 are quashed and re-imposed. Therefore the appellant is sentenced as follows:

The Court directs that six months of the sentence imposed on count 1 be served cumulatively upon that imposed on count 2, making a total effective sentence of three years and six months' imprisonment.
In respect of presentment no T03040878, the Court directs that the sentences be quashed and in lieu thereof the appellant is sentenced as follows:

On count 1 - two years and six months' imprisonment;

The Court directs that six months of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1, creating a total effective sentence of three years' imprisonment.
The Court directs that 18 months of the total effective sentence encompassed by presentment no T03040878 be served cumulatively upon that imposed on presentment no C0604296. This would result in an overall sentence of five years' imprisonment in respect of which a non-parole period of four years is fixed.
It is declared that the period of 705 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
The Court otherwise confirms the order made pursuant to s 151 of the Firearms Act 1996 by the sentencing judge on 5 December 2006.

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