R v Robertson [2006] VSCA 71

2 The appellant and a co-offender, John Mitropoulos, pleaded guilty in the County Court on 6 July 2005 to one count of attempted armed robbery (count 1) and one count of intentionally causing serious injury (count 2).

3 The appellant also admitted 44 convictions from 13 court appearances between 7 April 2000 and 30 December 2003. There were 13 convictions for drug and property offences, which included robbery, attempted robbery and burglary, as well as three for escaping from lawful custody and convictions for a number of offences of violence.

4 His co-offender had a significantly less extensive record, but it included 10 offences against property, a drug offence, two offences of unlawful assault and a conviction for affray for which a sentence of imprisonment had been imposed upon him.

5 After hearing a plea in mitigation of penalty, the learned sentencing judge on 8 July 2005 imposed upon the appellant the following sentences:

On count 1 - four years imprisonment; and

On count 2 - five years imprisonment.

No order for cumulation was made and, accordingly, there was a total effective sentence of five years' imprisonment, in respect of which his Honour fixed a non-parole period of three years and six months.

6 The co-offender was sentenced to imprisonment for four years on each count, also to be served concurrently. In his case the sentencing judge fixed a non-parole period of three years.

7 This matter has previously come before me on 11 November 2005 on an application made pursuant to section 582 of the Crimes Act 1958. The sentencing judge had fixed a non-parole period pursuant to section 14 of the Sentencing Act 1991. However, that provision is only applicable in circumstances where the offender has been previously sentenced to a term of imprisonment in respect of which a non-parole period has been fixed and which has not expired at the time of the imposition of the later sentence. In the present case, the appellant had been previously sentenced to a term of imprisonment with a non-parole period. That period had, however, expired and he was at the time of sentencing for these offences serving the balance of the earlier sentence pursuant to an order of the Parole Board.

8 It was apparent that the sentencing judge had mistakenly applied s.14. As it was reasonably arguable that this was a material error, the application was granted. In this Court, Mrs Williams who appears for the Crown has conceded that the error was material and accordingly the appellant must be re-sentenced.

9 In about July 2004, the appellant became acquainted with the victim of both offences, Zereth Lebeter, who it appears operated as a street-level dealer in cannabis. The appellant secured his telephone number from him and indicated that he might contact him in the future.

10 On 21 August 2004, Robertson and his co-offender, Mitropoulos, were drinking together in Kew, when Robertson contacted Lebeter and arranged to meet him. The objective of the two men was to take from Lebeter any money and drugs that he was carrying. Lebeter, however, assumed that the purpose of the meeting was for Robertson to make a purchase. The two men then caught a train to the city, Mitropoulos being equipped with a knife that had been supplied to him by the appellant.

11 On their arrival at approximately 10.30 p.m., the appellant contacted Lebeter again by telephone to fix a meeting place, and, at about 11.48 p.m., Lebeter arrived at the designated location with a female friend. Upon sighting him, the appellant charged at him and pinned him against a wall. Mitropoulos produced the knife, to which I have referred, and stabbed Lebeter in the left shoulder. The appellant then held the victim to enable Mitropoulos to go through his pockets. Mitropoulos stabbed Lebeter again.

12 The two attackers demanded money and repeatedly kicked Lebeter. The appellant also demanded marijuana from him. He then said to Mitropoulos, "Stab him, stab him," whereupon Mitropoulos held the victim to the ground and stabbed him in the stomach.

13 Upon the intervention of a bystander - who, I should add, was abused and threatened - the appellant and his companion then fled the scene. They were apprehended a short time later.

14 The victim was conveyed to the Royal Melbourne Hospital, where he was treated for two stab wounds to the chest wall, a stab wound to the left shoulder and a stab wound to the lower abdominal wall. In relation to the last injury, surgery was required to ensure that his bowel had not sustained damage.

15 The appellant was, at the time of the commission of the offences, aged 22 years. He has had, as is so often unfortunately the case of persons who come before the criminal courts, a very difficult upbringing. His parents separated when he was quite young and his mother subsequently entered into a relationship with a man who sexually abused the appellant's step-sister. Unsurprisingly, the appellant experienced substantial personal difficulties as a consequence of this environment and from the age of 11 years lived in hostels in various suburbs of Melbourne. He attended three high schools to year 8 level and was expelled from the last of them. Thereafter he lived on the streets. He commenced to use cannabis and alcohol at the age of 13, and in his later teenage years graduated, if that is an appropriate term, to heroin.

16 He has, as I have indicated, although still quite young, acquired a substantial criminal history. He has been at various times released upon recognisance, sentenced to detention in a youth training centre on four occasions, and five times to imprisonment. In relation to less serious offences, fines have been imposed. He had been at liberty on parole for about six weeks only at the time of the commission of the offences with which we are here concerned. It is understandable that the sentencing judge regarded specific deterrence as assuming importance as a sentencing consideration in his case, as I do, or that his Honour did not indicate the presence of any sense of optimism about the appellant's prospects of rehabilitation.

17 At this point it is necessary to say something about the co-offender. Mitropoulos was only slightly younger than the appellant. He, too, had had a difficult childhood and his educational and work history indicates similar consequential instability. In common with the appellant, he is quite intelligent and, like the appellant, he commenced drug use at an early age, eventually developing a heroin addiction. He, too, as I have indicated, has a history of the commission of offences of violence and dishonesty and, although there are differences in their circumstances, I see no good reason for distinguishing between them by reference to any of these factors.

18 The sentencing judge expressed the view, which I also share, that he was unable to distinguish between them in terms of their respective culpability for the offences involved here, and, when dealing with their personal circumstances, was able to do so only to the extent that Mitropoulos was accepted by him to have better prospects for rehabilitation.

19 Each of the offences for which the appellant falls to be sentenced attracts a maximum penalty of 20 years' imprisonment. They are serious in themselves and, as the Crown contends, represent a bad example of this type of offending. They were committed in company and involved the use of a weapon supplied by the appellant. There was a display of violence upon a hapless victim that was shocking in nature and committed in a public area.

20 The level of culpability of the appellant for the assault on the victim, which was calculated, premeditated and cowardly, is very high indeed. There is simply nothing in the circumstances of the offending itself that can be seen to militate in favour of mitigation of penalty.

21 In support of his claim that this Court should impose a lesser sentence upon the appellant than that handed down in the court below, Mr Boyce drew our attention to the fact that as his client has been required to serve a substantial part of his earlier parole period following the revocation of that parole by the Adult Parole Board, he was unable to have the time taken into account as pre-sentence detention and the effective length of his incarceration was, accordingly, substantially longer. This, he continued, has relevance in the application of the principle of totality and when considering whether or not the sentence imposed upon the appellant can be seen to be manifestly excessive, bearing in mind his youth and unfortunate personal history. The effect of his Honour's disposition was that the appellant was now to serve a total effective sentence of six years and one month's imprisonment with an effective non-parole period of four years and seven months.

22 Other considerations urged upon the Court in mitigation of penalty were:

(a) The relatively superficial character of the injuries sustained by the victim. I would make only one comment concerning this submission. It is indeed fortunate for all concerned that that transpired to be the case.

(b) The appellant's plea of guilty, to which of course regard must be had.

(c) The appellant's youth and unfortunate background that can be seen to have made such an enormous contribution to the course that his life has followed.

(d) The appellant's expressions of remorse and his efforts to rehabilitate himself by addressing his drug addiction and remaining crime free in the six months following the commission of the offences.

23 I have taken all of these matters into account, including the sentence imposed upon the his co-offender Mitropoulos, the matters advanced before the judge in the court below on the appellant's plea, and the findings of fact made by him. Ultimately I have arrived at the view that the proper sentences to be imposed upon the appellant should be the same as those previously handed down.

24 Accordingly, I would allow this appeal but re-impose the same sentences.

27 The orders of the Court will be as follows:

The appeal is allowed.

The sentences of imprisonment imposed below are quashed. In lieu thereof, the appellant is sentenced as follows:

Count 1 - four years' imprisonment;

Count 2 - five years' imprisonment.

That results in a total effective sentence of five years' imprisonment, to be served cumulatively, pursuant to s.16(3B) of the Sentencing Act 1991, on the period of imprisonment which the appellant was required to serve in custody on cancellation of the parole order on 9th February 2005.

A non-parole period of three-and-a-half years is fixed.

It is declared that the period of 262 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.