R v Roy [2001] VSCA 61

9. It is sufficient to adapt the statement of the circumstances which the learned sentencing judge made. Both offences were committed at the premises of separate real estate agents at Endeavour Hills. On each occasion the applicant was armed with a syringe filled with his own blood. He travelled to and away from the scene in a car driven by an unknown woman. At the time he was, as the judge found, probably "hung over" from heroin, for he was a heroin addict and he was adversely affected by Diazapam. Be that as it may, as the judge said, the applicant knew very well what he was doing. In using a weapon of the kind he did, the applicant selected what are called "soft targets". The two persons the subjects of the robberies were women and each of them suffered severely, emotionally and otherwise, as a result of what was done. Indeed, the applicant recognised that they would have done so, for he wrote a circular letter to each apologising for what he had done and admitting that he had had no right to do it.

12. Upon the plea, counsel made on behalf of the applicant a number of points: that he had no prior convictions, despite having had a heroin habit for some two years before the offences were committed; that he was at the time 27 years old and a heroin addict; that he had made an early plea of guilty following co-operation with the police, making frank admissions; and, finally, that he had made a display of

genuine remorse for his actions. The judge imposed a sentence of four years' imprisonment for each offence and directed that one year on the second offence be served cumulatively upon the four years imposed for the first offence. The total effective sentence was therefore one of five years' imprisonment. A minimum was fixed of three years. Compensation orders amounting to $3,700 were made reflecting the amount of money which the applicant had obtained: $700 in the first robbery and some $3,000 in the other.

16. This morning, Mr Papas on behalf of the applicant said, if I may say so, all that could be said in respect of this application, and that amounts to very little. He submitted first, under cover of ground 1, that the sentence was manifestly excessive in all the circumstances. Ground 2, which in effect does no more than give particulars of the manifest excess alleged, said that the judge failed to give effect to the early plea of guilty, the admissions and co-operation with the investigating authority, the applicant's age combined with a lack of prior criminal history, his drug addiction, his prospects of rehabilitation and his medical condition, which is one of osteogenesis imperfecta, rendering him subject to brittleness of bones and some associated disabilities. It was said that the judge was somewhat lukewarm in his appreciation of the effect that should be given in the sentence to the plea of guilty. What the judge said was that he took into account and did not overlook the fact that the pleas of guilty saved the victims what undoubtedly for them would have been great stress in giving evidence. The submission made to us seemed to involve some notion of expressio unius est exclusio alterius attributed to the judge by counsel - that he gave effect only to what might be called the utilitarian aspect of the plea of guilty and excluded aspects of it that might have demonstrated, for example, remorse and the like. I do not think for a moment that there is anything in that point. The judge, as I would take it, mentioned specifically the aspect of the plea of guilty so far as it impacted on the sentence, which was obviously to his mind most important. It was plain enough that the judge in any event took into account the degree of remorse which the applicant had shown by his writing letters to his two victims.

19. It was said that this Court should be guided by what the New South Wales Court of Criminal Appeal had said in R. v. Thomson[1]. The fact is, however, that only a few days ago, in the case of R. v. Lim[2], this Court indicated that it did not feel itself obliged to take the same attitude as the court took in R. v. Thomson to the judge's failure to indicate, or to indicate in extenso, the extent to which he had relied upon the plea of guilty. In Lim's Case reference was made to R. v. Brooks[3], a decision of this Court on 20 September 2000. There, Callaway, J.A., in a judgment concurred in by the other members of the Court, referred to the failure of the judge there specifically to mention that he had paid heed to the plea of guilty. Reference was made to R. v. Elvy[4], in which there was an inference drawn from the judge's silence that he had not taken account of the offender's plea of guilty. Such an inference, however, is not always inevitable. What Callaway, J.A. said in Brooks's Case[5] was this:

"The question is not, however, whether the judge mentioned the plea or its timing or co-operation with the authorities. The question is whether the judge took them into account in an appropriate fashion. In the present case, as it happens, his Honour mentioned the plea of guilty three or four times in the course of the first few minutes of his sentencing remarks. I can well understand that he may have thought it wholly unnecessary to refer to the matter again, and I have every confidence that this very experienced judge took all those matters into account and gave them appropriate weight."

In the present case I am equally of the view that the judge should not be taken to have overlooked the plea of guilty in any of its aspects or undervalued it. Similarly, it seems to me that the judge did take into account and gave proper effect to all the other matters to which reference was made on behalf of the applicant before him on the plea.

24. The only other matter that I feel obliged to mention is the case of R. v. Pratt[6], a decision of the Western Australian Court of Appeal. There, to paraphrase it, some

kind of what appeared to be an almost mechanical instruction was given to the effect that, where an armed robbery by the use of a blood-filled syringe is perpetrated, an extra one year's imprisonment should be given on that account above what would otherwise be awarded. Now, the Crown referred to that decision before us, but did not go so far as to say that we should adopt the same yardstick as that which apparently appealed to the Western Australian court. Certainly I would not accede to any submission that we should apply a similar yardstick. All that need be said, I think, is that these kinds of armed robberies, prevalent as they are and easy to perpetrate as they are upon soft targets, need to be dealt with as a particularly horrible species of an undesirable genus, but always having regard to their own facts. They are commonly perpetrated by unstable criminals, usually drug addicts, and calculated to instil into the victim an exquisite sense of anguish and fear of the unknown. It is almost as though the criminal is engaging in a kind of biological warfare that will naturally introduce great apprehension into the mind of the victim. To that extent armed robbery with the wielding of a syringe full of blood is to be viewed sui generis and, in the context of all the other circumstances surrounding the case, dealt with appropriately.

28. There is in my opinion nothing at all in any of the points made in support of this application, and I am in favour of dismissing it.

32. I agree. I add only this. Mr Hicks on behalf of the respondent rightly points out that courts in this State are increasingly confronted by those who commit what he called armed robberies on soft targets where the weapon of choice - or, more probably, convenience - is a blood-filled syringe. Tadgell, J.A. has referred to cases in Western Australia where a practice has developed of giving an increased sentence, an increase expressed to be a period of one year, for the choice of weapon. For my own part, I am in agreement with Tadgell, J.A. that it would not be appropriate to

encourage a sentencing exercise of that sort in this State. I think that Mr Papas is right when he suggests that such a practice tends to run counter to the approach of sentencing according to the instinctive synthesis. Blood-filled syringes are undoubtedly a fearful weapon because they instil into the victim a legitimate fear of being pricked by a person who is usually a drug addict and out of control, with the consequence that the victim goes through the anguish of not knowing whether any of the fatal ramifications might flow. This no doubt is a factor which judges will take into account in imposing the appropriate sentence, including the weight which should be given for the purpose of general deterrence.

42. The formal order of the Court will be that the application is dismissed.

[1] [2000] NSWCCA 309.

[2] [2001] VSCA 60.

[3] [2000] VSCA 188.