R v Sheen [2005] VSCA 296

1 The appellant, who is now aged 36, pleaded guilty in the County Court to one count of attempted armed robbery (count 1) and one count of theft (count 2). The maximum custodial penalties for those offences are 20 years' and 10 years' imprisonment respectively. He admitted 44 previous convictions from twelve court appearances between April 1987 and November 2001. They included numerous offences involving assault or dishonesty, a charge of robbery in October 1999 and three counts of robbery with actual violence in the District Court in Queensland in November 2001, for which the appellant was sentenced to five years' imprisonment.

2 After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant on 8th February 2005 to four years' imprisonment on count 1 and two years' imprisonment on count 2. His Honour directed that 12 months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of five years' imprisonment. A non-parole period of three years and nine months was fixed.

3 The appellant was granted leave to appeal on 19th August 2005. There are four grounds in the full statement of grounds filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998:

"1. The learned sentencing judge erred in failing to give any consideration to the outstanding period of parole owed by the applicant when passing sentence.

2. The individual sentences imposed and the non-parole period fixed by the learned sentencing judge are manifestly excessive in all the circumstances.

3. The learned sentencing judge erred in making an order for the partial cumulation of the sentence imposed on count 2 upon the sentence imposed on count 1 that was manifestly excessive in all the circumstances.

4. There was a miscarriage of justice upon the hearing of the applicant's plea because of:

a. the failure of counsel for the applicant to provide the Court with a report as to the applicant's progress while on parole;

b. the failure of counsel for the applicant to ask that the Court obtain a report as to the applicant's progress while on parole; and

c. the failure of the learned sentencing judge to seek a report as to the applicant's progress while on parole."

4 The circumstances of the offending may be briefly stated. At about 3.10 p.m. on 30th June 2004 the appellant entered the Commonwealth Bank in Dandenong Plaza. He was wearing sunglasses and a beanie as disguise. He took his place in a queue of people waiting to be served by the tellers and waited until his turn came. He then went to the available teller and threw a note on to the counter reading, "I have a gun, large notes only." When he realised what was happening, the teller handed the note to his supervisor, who was at the next counter. He asked her what notes he should give the appellant and she replied, "Give any." The appellant then pulled his sleeve up to reveal a shiny brown wooden object, which was the weapon specified in the count of attempted armed robbery. He showed about three inches of it to the teller and said, "See, I have a gun. Make it fast." The supervisor then activated the bank's security screen and the appellant ran away empty-handed.

5 Approximately a quarter of an hour later the appellant entered the Westpac Bank in Lonsdale Street, Dandenong. He approached the counter where an employee of the bank was counting money. She asked him to step back into the queue and told him that he would be served by the next available teller. The appellant did take a couple of steps back, but then lunged at the counter, taking the money the teller was counting. It was in hundred-dollar notes, being sorted into piles of ten. In total $2,100 was stolen, which the appellant used to purchase heroin.

6 The appellant was arrested on 16th July 2004 and made full admissions. He said that he realised what he did was wrong and described his reason as "duress through coming down from heroin". Despite the fact that the offences were committed whilst the appellant was on parole, he was granted bail. He used the time productively. As the judge said in the course of his sentencing remarks:

"[Y]ou managed to obtain employment and it would appear have conducted yourself well since then. I have a reference before me from your employer. He speaks highly of your attitude towards the job that you had. I would imagine it would not be easy for someone in your position at that time to get employment of any sort at all, but you did. You are experienced in the removalist industry and you have obviously impressed your employer to the extent that he knowing what you are facing today says that he would be prepared to continue to employ you in the future if, and when, you become available. Given the fact that I am told that there are no other matters arising since you have been on bail, I assume that you have been able to get yourself off heroin in the meantime. I do not for a moment assume that those problems are behind you, but, at least, you have not been using in the intervening period."

There was also a favourable psychological report and material from the prison authorities in Queensland prior to the appellant's release on parole on 30th November 2003. His Honour observed that there was no doubt that the appellant took advantage of the time that he was in custody in an attempt to get his heroin problem behind him. Unfortunately, he relapsed on his return to Melbourne, in circumstances to which I shall refer in more detail later, and committed these serious, but unplanned and relatively impulsive, offences.

7 Counsel for the appellant and the respondent filed helpful outlines of submissions, which they supplemented by oral argument. Mr Hughan argued ground 1 first. At the time of the offences the appellant was on parole. Accordingly, there existed the possibility at the time of sentencing that the Parole Board would cancel his parole and require him to serve some or all of the outstanding period. The judge was required to take that possibility into account, in accordance with the decision of this Court in R. v. Orphanides[1]. No reference to the principle for which Orphanides stands was made in the course of the plea or the sentencing remarks. It is to some extent counter-intuitive. I readily assume that the learned and very experienced judge took s.16(3B) of the Sentencing Act 1991 into account, but the transcript and the sentence imposed show that ground 1 is made out.

8 Mr Hughan argued grounds 2 and 3 together. He emphasised that the appellant had made substantial efforts toward rehabilitation between the time he was released on parole and the commission of the offences and again whilst he was on bail. The offences themselves were impulsive, committed within a short time and not well planned. Both of them, counsel submitted, were towards the lower end of the scale. No one was placed in physical danger and, in the case of the attempted armed robbery, the appellant desisted as soon as the security screen was activated. He was fully co-operative with the police and pleaded guilty at the first opportunity. The judge accepted that he was genuinely remorseful. His remorse was no doubt explained in part by the circumstances that contributed to his fall from grace after his return to Melbourne. They are referred to in the psychological report of which I have already made mention and were summarised by counsel on the plea. On his return to Melbourne the appellant was prescribed morphine for pain caused by brachial plexus damage. The morphine was detected in urine sample tests provided to his parole officer, who insisted that he wholly cease its use. There was a dispute over that issue between the appellant and the parole officer and the pain continued, mainly at night. In March the appellant was put on antidepressant medication after he began to suffer flashbacks. It was in that context that he decided to return to heroin and commit these offences as a means of financing its purchase.[2]

9 In case the sentencing discretion was re-opened, Mr Hughan informed us of the appellant's present position. The Parole Board did cancel his parole on 2nd March 2005. The outstanding parole period is two years five months and three days. The appellant is serving that sentence in Victoria. Since being returned to prison, he has completed a life skills course and a drug rehabilitation course and has been accepted for an intensive drug rehabilitation course of some 15 weeks' duration beginning in January 2006. He is a maintenance billet and has accepted the responsibilities of a peer educator. He retains the support of his family and it is said that a job remains open to him when he is released.

10 As the judge said and as Mr Southey pointed out in his submissions, these were serious crimes, committed by a man who had not long been released after serving a substantial term of imprisonment for virtually identical offences. In my opinion a measure of cumulation was well within his Honour's discretion, especially as there were different victims of the two offences. I refer not just to the banks but to the bank staff, who were put in fear. The sentences were nevertheless stern when all the circumstances, including the appellant's prospects of rehabilitation and his efforts in that direction, are taken into account. But we need not decide the grounds relating to manifest excess, because the failure of counsel to alert the judge to the Orphanides point, and its consequently being overlooked, re-open the sentencing discretion.

11 Taking into account the seriousness of the offences, but also the mitigatory factors to which Mr Hughan referred, I would re-sentence the appellant to three years' imprisonment on count 1 and affirm the sentence of two years' imprisonment on count 2. In the interests of totality with the Queensland sentence, I would permit those sentences to be served concurrently with each other, making a total effective sentence of three years' imprisonment, and fix a non-parole period of two years. The sentence and the non-parole period would be deemed to be imposed on 8th February 2005, but s.16(3B) of the Sentencing Act will apply.

14 The formal orders of the Court will be as follows:

The appeal is allowed in part.

The sentence imposed on count 1, the direction for cumulation and the non-parole period are set aside.

In lieu of the sentence imposed on count 1, the appellant is sentenced to three years' imprisonment on that count. The sentence imposed on count 2 is to be served concurrently with the sentence imposed on count 1, making a total effective sentence of three years' imprisonment.

A non-parole period of two years is fixed.

The sentence and the non-parole period are deemed to have been imposed on 8th February 2005.

The question then arises whether the appellant is entitled to a declaration regarding pre-sentence detention and, if so, the amount that should be declared. He was sentenced in the County Court for the present offences on 8th February 2005. His parole was cancelled on 2nd March 2005. Clearly he is entitled to that period of custody, but he is also entitled to the period of custody between 2nd March 2005 and today. That is because of the order in which the parole sentence and the sentence for the present offences are to be served pursuant to s.15(1)(b) and (c) of the Sentencing Act 1991.

Accordingly, it is declared that the period of 304 days is to be reckoned as already served under the sentence as at today's date and it is ordered that the fact that that declaration was made and its details be noted in the records of the Court.

[1] [2002] VSCA 86; (2002) 130 A.Crim.R. 403. See also R. v. Greenslade [2004] VSCA 213 at [31] and R. v. Sullivan [2005] VSCA 286 at [20].

[2] Mr Hughan also pointed out that the appellant's original addiction to heroin began when he was incarcerated for the first time. He submitted that the circumstances in which a person becomes addicted may properly be taken into account as bearing on moral culpability.