R v Sullivan [2005] VSCA 286

2 This is an appeal against sentence imposed by a judge of the County Court on 28 January 2005, leave to appeal having been granted by a judge of this Court. The appellant, who was presented with three other offenders, pleaded guilty to ten counts of armed robbery, one count of attempted armed robbery and four counts of theft of a motor vehicle. The maximum penalty for armed robbery is 25 years' imprisonment, for attempted armed robbery is 20 years' imprisonment and for theft 10 years' imprisonment.

3 The offending all took place over a 26-day period in March and April 2004. The appellant, alone, was arraigned on and pleaded guilty to every count on the presentment, whereas two of the other offenders pleaded guilty to only one count of armed robbery and the fourth pleaded guilty to one count of armed robbery and one count of theft.

4 The armed robbery offences and the attempted armed robbery offence all related to soft targets, such as service stations and 7-Eleven convenience stores where, on each occasion, the appellant (alone in all but one instance) when armed with a knife and wearing a full-face balaclava, threatened the store attendant and stole cash from the till. The offences were committed late at night and the staff concerned were intimidated and, in some, if not all, instances, terrified. The motor vehicles were stolen for the purpose of committing some of the robberies.

5 All four co-accused took part in the armed robbery which constituted count 7. That count formed the base upon which orders for cumulation were made by the judge with respect to the appellant's sentences. On that occasion the four offenders travelled in a stolen car to a Salvation Army store, where they purchased clothing for the purpose of the robbery and also purchased a 30 cm. Wiltshire kitchen knife. The appellant was already armed with a knife. They then drove to Elwood Food Works, where the appellant and Jamie Holt entered the store wearing black balaclavas, both of them carrying kitchen knives. The two others remained with the vehicle.

6 The appellant and Holt confronted a female attendant and when she endeavoured to walk away from them she was pursued by one of the two offenders who was waving a knife around, which the shop assistant believed was being aimed at her arms. She then returned behind the counter and in response to demands from the offenders opened the till from which money was removed. She then opened another till. The offenders demanded cigarettes, a quantity of which was provided. At the time of this robbery there were three other employees in the store, together with one customer. A female customer who was present in the store was ordered to the ground. One of the offenders yelled at a male employee, "Get on the fucking ground you cunt, I've got a fucking gun, I'll fucking shoot you, get on the ground." In fact neither offender had a gun, but the threat was meant to, and no doubt did, intimidate the employee. The two other offenders who remained with the car thereafter joined the appellant and Holt.

7 In each of the other instances of armed robbery the modus operandi employed by the appellant was very similar to that constituted by count 7. The offence of attempted armed robbery (count 14) was not a completed offence only because the attendant at the service station convenience store refused to unlock the door to the premises to allow entry to the appellant. It is unnecessary to detail all of the other offences. They were fully described in the opening by the prosecutor. In declining to fully describe the circumstances of the other offences I do not intend to understate their seriousness, but I adopt this course in recognition of their similarity with the events described under count 7, save for the number of offenders involved. When arrested on 15 April 2004 the appellant admitted all matters put to him by investigating police officers, save for the offence under count 5, which he could not remember.

8 The appellant, who is now aged 33 years and was 32 at the time of the offending, admitted 53 previous convictions from 17 court appearances between 1989 and 2004. Offences of dishonesty predominate, but two are of particular relevance. In September 1999 he was convicted on nine counts of theft and counts of burglary, handling stolen goods and breaching a suspended sentence. He was sentenced to a total effective sentence of 18 months' imprisonment with a non-parole period of eight months, which was varied on appeal by the non-parole period being reduced to six months. In September 2001 he was convicted of armed robbery and sentenced to three years and two months' imprisonment, with a non-parole period of 21 months.

9 His Honour imposed the following sentences.

10 On count 7, the base sentence, the appellant was sentenced to four years' imprisonment. On each of the other armed robbery counts he was sentenced to three years' imprisonment and on the attempted armed robbery count to 12 months' imprisonment. On each of the theft counts he was sentenced to 12 months' imprisonment. Eight months of the sentences on counts 1, 2, 3, 5, 9, 10, 11, 13 and 15 was in each case ordered to be served cumulatively on count 7 and on each other, leading to a total effective sentence of 10 years' imprisonment. The learned sentencing judge set a non-parole period of seven years.

11 No complaint about parity in sentencing is raised as to the sentences imposed on the other offenders and it is unnecessary to say anything further about them.

12 The grounds of appeal against sentence are as follows:

1. The learned sentencing judge erred by making orders for concurrency which resulted in cumulation that offended the principle of totality.

2. The learned sentencing judge erred by failing properly or at all to have regard and give sufficient weight to:

(a) the implications, for the appellant's ultimate predicament, of s.16(3B) of the Sentencing Act 1991;

(b) the fact that, at the time of sentence, the appellant's parole had been cancelled.

13 Before dealing with the grounds, I give some background information about the appellant to which his Honour had regard and accepted to have value in mitigation of sentence.

14 The appellant had been educated at a public school, but failed to complete year 12. He then went to Syndal Technical College and completed year 12. At school he had been a talented athlete. After leaving school he worked for a computer cabling company and then qualified as a welder at Swinburne Technical School. He was then employed for six years as an operations manager with a company, thus demonstrating that he is a person with some capacity for hard and sustained work. His work in that business ceased only because the company moved offshore. The appellant commenced a de facto relationship in 1990 and he and his partner had two sons, now aged over 13 and 11 years. He commenced the use of heroin after the breakdown of this relationship.

15 The appellant's father was the head of a well-known finance company and his mother worked as a legal secretary. His parents separated some five or six years ago and in the course of their divorce the appellant discovered that he had been adopted. That reinforced feelings of alienation from his family. At the time of sentencing, he had had no contact with family members, including his siblings, whilst in custody. His children, however, regularly visited him in prison.

16 A psychiatric report from Dr Lester Walton dated 17 January 2005 disclosed that the appellant commenced marijuana use at the age of 13 and amphetamine use from the age of 16 and he had been a heroin user for some four years. The appellant had a long psychiatric history, first seeing a psychiatrist when he was a student in year 8. He underwent counselling and was medicated. In 1995 he saw a psychiatrist at the prompting of his partner about his drug use and drug abuse and the fact that he had developed paranoid delusions. In 1997 he was prescribed antidepressant medication.

17 The appellant had avoided drug use for some 18 months after his release from prison, but had regressed into drug use after a friend, who had just been released from prison, overdosed with heroin and died in the presence of the appellant, who had attempted cardiopulmonary resuscitation. Rather than that tragic event renewing his determination to stay off drugs, it had the reverse effect. The appellant relapsed into heroin abuse and amphetamine use and was soon using up to $700 worth of illicit drugs daily. That is the background to the current offences.

18 I return then to the grounds of appeal, and the two grounds may be addressed together. At the heart of the appeal is the impact on sentencing of the fact that in committing these offences the appellant was in breach of two parole orders.

19 At the time of his sentencing the appellant was serving 28 months' imprisonment by virtue of the revocation of parole with respect to the sentences in both 1999 and 2001. The judge in his sentencing remarks wrongly stated the period as 25 months. That error is not a matter which in itself would have any bearing on the outcome of the appeal, in my opinion. When sentenced for these offences the appellant had served some eight months of his cancelled parole order, which meant that the remainder of that sentence would expire on 16 September 2006. By virtue of s.16(3B) of the Sentencing Act 1991 the sentence imposed on 28 January 2005 was cumulative upon the sentence the appellant was serving in respect of the parole breaches. It was not argued on behalf of the appellant that there were exceptional circumstances which could obviate that consequence. The effect of that obligatory cumulation is that the current sentence will expire on 12 August 2016 and the appellant would be first eligible for parole on 24 December 2011.

20 Under ground 1 counsel for the appellant contended that the sentence imposed breached the principle of totality. That principle requires that the sentencing court evaluate the overall criminality involved in all the offences and adjust the sentences downwards, where appropriate, to ensure there is an appropriate relativity between the totality of the criminality and the totality of the length of sentence imposed. It is a principle which requires the court to have regard both to the sentences about to be imposed and those which the prisoner is already undergoing: see Postiglione v. The Queen[1]. Notwithstanding s.16(3B), the principle of totality also has application in circumstances where, as here, the sentence currently being served derives from a breach of parole.[2]

21 In his sentencing remarks the learned judge said very little about totality and the relevance of that principle to the situation of the appellant in consequence of his revocation of parole. His Honour noted that he was serving 25 months by virtue of the parole breaches (as I said, it was in fact 28 months) and he noted the offences to which the parole orders related. At the conclusion of his sentencing remarks his Honour noted that the appellant now understood the predicament his offending had placed him in. There then followed a paragraph in the sentencing remarks, which I have modified so as to address what I think is a transcription error and (by placing some words in parenthesis and adding some words) in order to reflect what I think was the intended meaning of the judge. His Honour said that he was:

"[t]aking into account the principles of general deterrence and specific deterrence, together with the principles of totality in sentencing, and (being conscious of the concession made by [counsel] that he cannot plead exceptional circumstances) [also taking into account] the effect of s.16(3B) of the Sentencing Act."

22 Save for that paragraph the learned sentencing judge made no express reference to totality, although, in my opinion, it was a factor which was of considerable importance in this case and merited more substantial treatment in the reasons, if the issue was to be given appropriate attention.

23 Plainly, general deterrence and specific deterrence were very relevant factors in this case and his Honour was right to give weight to those factors. These offences are prevalent. The innocent workers who are exposed to such offences are often traumatised by the experience. In this case three victim impact statements disclosed such trauma. Furthermore, the appellant cannot seek mitigation by virtue of youth. He also has multiple relevant prior offences, and he has been given many chances in the past by sentencing courts.

24 In a report of Ms Mary Kearns, Senior Community Corrections Officer with Corrections Victoria, the appellant's history of non-compliance with community-based orders has been set out. Between 1991 and 1997 the appellant had successfully completed community-based orders, but then in 1999 breached a community-based order by further offending and breached an intensive correction order by failing to comply with conditions and by further offending. In 2000 an intensive correction order was cancelled by virtue of him failing to comply with the conditions. As noted earlier, he breached parole orders in two instances by this offending.

25 The appellant had otherwise complied with his parole conditions, thus confirming what he said to Dr Walton, that upon his release he had been going well, until he relapsed into heroin use, again, and committed these offences.

26 His Honour recognised that there were also significant mitigating factors. His Honour said that the appellant would receive a "discounted sentence" by reason of the fact that he pleaded guilty to the offences at the first opportunity. He accepted that but for his pleas of guilty the prosecution might have had difficulty obtaining convictions on some of the offences. The appellant expressed remorse, which Dr Walton, and in turn his Honour, accepted to be genuine, for the impact of his offences on his victims. As I have noted, the appellant has a reasonable work history, when his life has not been dominated by drugs.

27 Mr Hallowes submitted that when regard was had to the 28-month period that was to be served cumulatively with the sentence of 10 years' imprisonment, the sentence imposed by his Honour was disproportionate to the totality of the offending. Likewise the non-parole period which was fixed was disproportionate.

28 In my opinion, despite his Honour's recognition of the significance of the factor of rehabilitation, the sentence which was imposed, in the end result, gave very little weight to that consideration.

29 Dr Walton concluded that the appellant had a chronic depressive disorder, which was serious, but he noted that his efforts at rehabilitation were self-initiated and he concluded "this man is now of an age when a proportion of persons with anti-social backgrounds do seem to change for the better. That process could not be stated to be definitively established with Mr Sullivan but there are encouraging signs." That evidence, in my opinion, was of importance in assessing the rehabilitation prospects of the appellant. His Honour did, indeed, place some weight on the opinion expressed by Dr Walton that the appellant showed genuine remorse and determination to address his problems. Indeed, his Honour concluded that the appellant's prospect of rehabilitation was excellent providing he could defeat his heroin addiction, but that finding, with respect, is not reflected in the length of the sentence imposed.

30 As serious as was the offending of the appellant, there were real prospects of rehabilitation. He had shown genuine remorse and his pleas of guilty were significant in the circumstances. Although he was a person with long-standing depressive illness, he showed substantial signs of endeavouring to avoid further offending. Whilst in custody awaiting sentence the appellant attended drug and alcohol rehabilitation programmes.

31 Dr Walton concluded that the appellant was a person of normal intelligence who was likely to require ongoing medication indefinitely and would need to apply himself to drug rehabilitation. Importantly, Dr Walton opined:

"It is almost universal for the progress towards remaining consistently drug free to be interrupted by at least a few relapses and thus the recent relapse does not necessarily indicate a poor long-term prognosis. Mr Sullivan certainly impresses as being well motivated towards reforming himself and adequately discharging his work and parental responsibilities."

32 In my view, the sentence imposed was disproportionate when regard was had to the period to be served for breach of parole in addition to the penalty imposed for these offences. By virtue of the orders made as to cumulation, the sentence is crushing in those circumstances, and offends the principle of totality. In my view the sentences should be varied. I would affirm the sentences imposed by the judge on all counts but I would vary the orders as to cumulation as follows.

33 I would order that six months of the sentence imposed on counts 1, 2 and 3, and five months of the sentences imposed on counts 5, 9, 10, 11, 13 and 15 be served cumulatively upon the sentence imposed on count 7 and upon each other. That would produce a total effective sentence of eight years. I would impose a non-parole period of five years' imprisonment, a longer than usual period of parole, although it is the same gap as his Honour imposed between the head sentence and non-parole period. I propose that non-parole period so as to maximise the rehabilitation prospects of the appellant upon his release on parole, but recognising in so proposing, that he has breached parole on previous occasions.

34 I would affirm all other sentencing orders made by the judge, save that I would vary the period of licence disqualification from 10 years to five years.

2. The sentences of imprisonment imposed below on each count are affirmed save for the orders made as to cumulation. The orders as to cumulation are set aside. In lieu thereof the following orders are made as to cumulation -

(i) The Court orders that 6 months of each of the sentences imposed on counts 1, 2 and 3 be served cumulatively upon the sentence imposed on count 7 and upon each other.

(ii) The Court orders that 5 months of the sentences imposed on counts 5, 9, 10, 11, 13 and 15 be served cumulatively upon each other and upon the sentence imposed on count 7.

3. The total effective sentence is 8 years.

4. The Court orders that the appellant serve 5 years of that sentence before becoming eligible for parole.

5. The Court declares that the period of 35 days is to be reckoned as already served under the sentence and it is ordered that it be noted in the records of the Court that that declaration was made and its details.

6. The order made below pursuant to s.89(4) of the Sentencing Act 1991 that the appellant's licence to drive a motor vehicle in the State of Victoria be cancelled is affirmed, save for amending the relevant section from s.99(4) to s.89(4), and the order that he be disqualified from obtaining any further licence for a period of 10 years is set aside and in lieu thereof the Court orders that he is disqualified from obtaining any further licence for a period of 5 years.

7. The orders as to compensation and confiscation of property made below are affirmed.

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[1] [1997] HCA 26; (1997) 189 C.L.R. 295 at 308.

[2] See R. v. Orphanides [2002] VSCA 86, at [37]-[39].