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[2007] VSCA 14
Court of Appeal (Vic)
2007-02-06
BUCHANAN and EAMES, JJ.A. and KELLAM, A.J.A.
Original judgment source is linked above.
Criminal law - Sentence - Armed robbery - Plea of guilty - Utility of sentencing statistics - Sentence of four years and six months' imprisonment with a minimum term of two years' imprisonment not manifestly excessive.
1 The appellant was granted leave by a single judge of this Court to appeal from a sentence of four years and six months' imprisonment with a minimum term of two years' imprisonment which was imposed upon him when he pleaded guilty to a presentment containing one count of armed robbery.
2 The robbery took place in the early afternoon of 21 August 2005, at a time when the appellant was on bail. The appellant, a co-offender, Mark Jacobs, and the appellant's sister drove in a motor car from Keilor Park to North Melbourne. The car was parked in a lane in North Melbourne. The appellant and Jacobs alighted from the car and approached a shop, the appellant wearing a black balaclava and carrying a long knife. The appellant entered the shop, approached the cash register and confronted one of the owners of the shop. The appellant grabbed her by the arm or shoulder, showed her the knife and said several times, "Give me the money." The appellant pushed the owner out of the way and went to the cash register, pressing the buttons with an intent to open it, although without success. The owner's husband entered the shop and pulled his wife outside. The owners attempted to hold the shop door closed, imprisoning the appellant. The appellant picked up the cash register, containing some $500, and forced his way out of the shop and ran back towards the car. The appellant got into the car with the cash register and drove off with his sister, leaving Jacobs behind.
3 Six days later the appellant was arrested and interviewed by the police. The appellant denied any involvement in the offence. Neither the knife nor the cash register has been found.
4 The appellant is 32 years old. He is one of five children. When the appellant was a young child, his mother left the family. Her children were cared for by their father. Two of the children were adopted because the appellant's father could not manage five young children by himself. When the appellant was 12 years old, his father died. The sentencing judge accepted that this had a profound impact upon the appellant. After the death of the appellant's father, his mother returned to the family, but relations between the appellant and his mother were strained. The appellant was thrown out of the house on several occasions, began to play truant at school and eventually left school half way through year 10. The appellant has been employed as a painter and decorator and has a forklift licence The appellant has two sons and a daughter from different relationships. Reports by a psychologist were tendered during the course of the plea. It appears from those reports that the appellant has indulged in binge drinking, and the abuse of prescription medicines and cannabis. Eventually the appellant began using heroin. The appellant suffers from depression and once made a determined attempt to kill himself by hanging.
5 The appellant has 43 prior convictions from 11 court appearances. The offences included street offences, offences of violence, driving offences and offences of dishonesty.
6 A matter upon which a great deal of emphasis was placed in the course of the plea and was at the forefront of the submissions made on appeal was the appellant's plea of guilty.
7 A plea of guilty entitles an offender to a reduction in the sentence which otherwise would be fixed. See s.5(2)(e) of the Sentencing Act 1991. See also R. v. Duncan [1998] VR 208 at 214-5 per Callaway, J.A.; Cameron v. R. (2002) 209 CLR 339. The significance of a guilty plea is affected by the strength of the Crown case. The fact that a sentence has been discounted should appear from the sentencing remarks.[1]
8 In the present case the sentencing judge said:
1 "You have pleaded guilty and you are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea been spared the time and cost of a trial, and witnesses, including your victims, have been spared the ordeal of giving evidence upon your trial. Further, I take into account in your favour that whilst you did not enter a plea of guilty at the earliest opportunity, you have nevertheless pleaded guilty to these offences and I accept that in all the circumstances your plea does indicate true remorse for your actions.
You originally had denied any involvement in the armed robbery. However, Mr Furstenburg argued that the Crown case against you was not overwhelming and referred the court to and relied upon the principles enunciated by the Court of Appeal in the unreported judgment in R. v. Demarco[2], namely that a plea of guilty, offered in circumstances where there is not an overwhelming Crown case, is a very significant matter indeed. In all the circumstances of your case, you are entitled to a discount and I therefore impose a lesser sentence than I otherwise would have."
9 Counsel for the appellant emphasised that this plea was of particular value because, as the Crown acknowledged in the course of the plea, and her Honour recounted, the Crown case was not overwhelming.
10 Counsel for the appellant submitted that the sentencing remarks do not disclose how the guilty plea affected the sentence. In my opinion the sentencing judge in the remarks I have quoted did appropriately explain the effect of the plea. A sentencing judge is not obliged to quantify the discount which he or she has given.
11 Counsel for the appellant also submitted that the sentence itself reveals that insufficient weight was given to the guilty plea. I am prepared to accept for the sake of argument that the facts of this case do not place it in the highest range of armed robberies. On the other hand, a deadly weapon was wielded and used to menace vulnerable shopkeepers. The maximum sentence for armed robbery is 25 years' imprisonment. In my opinion this robbery committed by a man with a significant history of prior offending did not render the sentence which was imposed upon him excessive, even if it might be described as a stern sentence.
12 Accordingly, I would dismiss the appeal.
13 In the course of the hearing of this appeal we were referred to the statistics to be found in Sentencing Snapshot No. 9 of June 2006, relating to sentencing trends for armed robbery as published by the Sentencing Advisory Council. Figure 14 in that publication relates to people sentenced to imprisonment for armed robbery by average total effective imprisonment and average non-parole period in the periods from 2000 to 2005. In the period of 2004-2005, and the previous years are similar, the average head sentence is shown as three years nine months; the average non-parole period as two years and two months. Useful as such statistics are, whether they relate to median or average sentences imposed on offenders, there are limitations to them. They cannot tell us, for example, what would be the sentencing range for persons such as this offender, who could not claim youth in his favour for sentencing and who had multiple very serious prior convictions for violence and dishonesty, which offences in some cases resulted in sentences of imprisonment.
14 In all the circumstances of this case, and for the reasons given by the learned presiding judge, in my view this sentence has not been shown to be manifestly excessive or otherwise to disclose error, and I agree that the appeal should be dismissed.
16 The order of the Court is that the appeal is dismissed.
[1] R v Gillick [2001] VSCA 201; (2001) 125 A.Crim.R. 395.
R
Rowlands [2007] VSCA 14
(2002) 209 CLR 339