Court of Appeal (Vic)|2011-10-14|Before: Mr P, Ms J, Nettle JA

Singh v The Queen [2011] VSCA 333 (14 October 2011)

DPP v Singh (Unreported, County Court of Victoria, Judge Tinney, 26 August 2010)

1 This is an appeal against a total effective sentence of six years and six months' imprisonment with a non-parole period of four years and six months imposed on the appellant on pleading guilty to five charges of armed robbery, two charges of robbery and a summary offence of possession of a controlled weapon.

2 The individual sentences and orders for cumulation were as follows:

3 The appellant contends that the sentence is manifestly excessive and that the sentencing judge erred in fixing the non-parole period. Both grounds are based on the appellant's depleted mental condition at the time of the offending.

4 The facts of the offending are compendiously summarised in the judge's sentencing remarks. For present purposes, it suffices to record the following.

5 Charge 1: At 5.30 pm on 5 September 2009 the appellant went to a pharmacy in Flinders Lane, Melbourne. There was a lone female staff member, Ms S, on duty and the appellant approached her. As a pretext to what then followed, he asked her if she could recommend something to help him quit smoking. Ms S moved away to get the appropriate product and, despite the presence of other customers in the pharmacy, the appellant went behind the service counter and was in the process of stealing a variety of prescription medications when Ms S returned. She asked him to move away from the area and he then produced a prescription from his doctor. Ms S could hear medication rattling in boxes in his pockets, and asked him to produce them. He pulled them out but then pulled out a syringe, removed the cap from the needle and held it to his side saying, 'Just give me the temtabs, I don't want no trouble'. The temtabs were the drugs he had stolen from behind the counter. Then he picked up the syringe cap from the floor and left with the drugs which were valued at $80. Subsequently, he was identified from a photoboard.

6 Charges 2 and 3: At 2.30 am the following morning of 6 September 2009, Ms J and her housemate, Ms Y, were walking through the Queen Victoria Market on their way home from a Melbourne Central cinema. The appellant fell into step behind them, approached them and opened up his arms as a preliminary to putting his arms over their shoulders. The women moved away from him. He said to Ms Y that he did not want to hurt anybody but that he had a needle with blood it in, and he showed his wrist in which a catheter was inserted. He asked that she get out her wallet. She did that and, in response to his demand, gave him $100. He then pointed to Ms J and said, 'What about your friend, she hasn't given me her wallet'. Then he approached Ms J at the roadside. By that point, Ms J was yelling for a taxi. The appellant demanded money from her and pushed his hand out towards her. In response, she took out her purse and gave him some small change, which caused him to complain that he needed more. He said that, if he had to, he would stab the taxi driver who was being summoned. Ms J told the appellant that she had no more money. Each of the women then continued attempting to flag down a taxi and moved out onto the road surface. When some other cars approached, the appellant ran off towards the market. He was later identified from a photoboard.

7 Charge 4: Later on 6 September, 2009, at about 6.05 am, the appellant went to a petrol station in Flemington Road, North Melbourne. The lone attendant, Mr N, noticed the appellant come into the store wearing a blue jacket. The appellant first went to the food section of the store and then came up to the side counter holding a muffin. He asked Mr N what he could buy for a $1.50. That was a pretext to what the appellant was about to do. He moved in behind the counter, close to Mr N. He told Mr N that he had something under his jacket and, although he did not want to cause trouble, Mr N must do as he demanded and open the till. Mr N complied by opening the till and the appellant reached in and removed about $1,000 in notes. The appellant then took the shop phone and said, 'Don't call the police'. He also asked Mr N for his mobile phone but Mr N replied that he did not have one. The appellant walked towards the door but then came back and got a packet of cigarettes. By that stage, Mr N had pressed a button locking the entrance/exit; grabbed a second phone and taken it to the storeroom; locked himself in; and, from that relative security, called 000. The appellant used a brick which he had carried to effect the armed robbery to break the glass door and he left. Again, he was identified from a photoboard.

8 Charge 5: At 4.00 pm on 8 September 2007, Mr T started his shift as an attendant at a convenience store in Elizabeth Street, Melbourne. He was working alone. At approximately 8.50 pm, the appellant entered the store and went immediately to the counter. He was carrying a syringe and an empty blue bag and he asked Mr T for Superking cigarettes. As Mr T turned around to reach for the cigarettes, the appellant opened the service counter door and walked behind the counter up to Mr T, and then demanded a number of times that Mr T open the cash register. Mr T refused. The appellant produced a syringe, took off the orange cap and exposed the needle. He held the syringe to the right hand side of his hip and again demanded that Mr T open the register. Understandably, Mr T complied. The appellant took all of the notes out of the register and put them in the bag and then pointed towards the coins and took those too. He made further demands for cigarettes. Then he picked up Mr T's wallet and mobile phone from the top of the service counter and left the store. The appellant thereby stole in excess of $350 in cash from the register and about $8 from Mr T's wallet, which also contained Mr T's debit cards and identification. The incident was captured on CCTV. When police attended, they located an orange syringe cap on the floor with blood in it, as captured in the CCTV footage. The judge found that it was the syringe, with blood in it, which the appellant used to effect the armed robbery. The appellant was identified.

9 Charge 6: About a week later, on Tuesday, 15 September 2009, Ms D was working at a clothing store on the ground floor of Melbourne Central. It was 4.30 pm and she was sitting using the computer in the store when the appellant came in and stood next to her. He produced a silver knife from his sleeve, causing her to move back. He demanded money at knifepoint, saying at the same time not to be scared. Her response was to say, 'Have everything. Just take it'. She opened a purse which was used to store the shop's money and gave the appellant about $90. He queried whether there was any more money and looked inside a drawer, but to no avail. Then he left the store. The incident was captured on CCTV and the appellant was identified from a photoboard.

10 Charge 7: About half an hour later, the appellant entered another store on the ground floor at Melbourne Central. Ms P was the lone attendant. The appellant asked her if the store were a ladies' fashion store and Ms P replied that it was. The appellant's inquiry was a pretext to what then unfolded. He produced a knife in his right hand and held it about two centimetres away from Ms P's stomach. She later described it as a tiny knife, like a fruit knife. Ms P was behind the counter and could not get out because the appellant sat down at the end, obstructing the passageway. He told her to take out the money from the register, which she did. He pointed at the $50 notes while continuing to hold the knife close to her. She gave him all the notes. She told him that there were CCTV cameras and he replied that he did not mind. As he left, he told Ms P, 'I'm watching, I'm watching'. He was later identified from a photoboard.

11 Summary offence: The facts of the summary offence of possession of a controlled weapon were that, on 1 August 2009, the appellant was observed talking to a female in the underpass at the Essendon Railway Station. Police approached him and conducted a search. They found a black handled knife in his jacket pocket. The appellant told the police that he had the knife for self defence.

12 The appellant was arrested on 21 September 2009, in Broadmeadows. A search warrant was executed at his residence and he was taken to the police station for interview. Initially, he denied involvement in the offending, citing problems with his memory. After a break, however, he made full admissions to all of the offending except for the robbery in the Queen Victoria Market area (Charges 2 and 3).

13 The judge found that each of the victims of the appellant's offending was fearful when the appellant made demands but that it was not open to conclude there was any lasting or long-term effects of the crimes.

14 Under the heading of Ground 1, the appellant contends that, in view of the appellant's precarious state of mental health at the time of offending, the judge's orders for cumulation and non-parole period are manifestly excessive. To a lesser extent, the appellant also relies on the mitigatory significance of the appellant's plea of guilty entered at a very early stage, his very severely disadvantaged upbringing, his remorse, regret and empathy towards his victims, his admissions and time spent on remand for other offending.

15 I am not persuaded. I accept that the appellant's state of mental health was precarious at the time of offending. The judge made a specific finding to that effect. There is also no dispute about the other mitigatory factors which are relied upon. But, as the judge observed, the appellant has an extensive criminal history of similar offending and, at the time of this offending, he was on parole in relation to earlier convictions. In those circumstances, it was necessary for the judge to balance the mitigatory effects of the appellant's mental condition and other mitigatory considerations against the need for denunciation, deterrence, just punishment and, most importantly, community protection. As it appears to me, from his Honour's very carefully constructed sentencing remarks, he went to considerable lengths in identifying each of the relevant considerations and giving to each the weight which it warranted in the circumstances of this case.

16 To start with, as the judge observed, these were serious offences of robbery and armed robbery committed against soft targets, of a kind which has become prevalent.

17 Secondly, as the judge noted, the appellant has a criminal history constituted of more than 70 prior convictions for robbery, burglary, theft, driving whilst disqualified, criminal damage, assault and trafficking heroin. The most recent were entered on 22 January 2007, when the appellant appeared before another judge of the County Court and pleaded guilty to two charges of armed robbery, one of attempted armed robbery, one of theft and possession of a controlled weapon. On that occasion, he was sentenced to a total effective sentence of 43 months with a non-parole period of 26 months, together with a pre-sentence declaration of 162 days.

18 Thirdly, in the past, as the judge said, the appellant has received all manner of dispositions, including a combined treatment and custody order in 2001 which he breached and an Intensive Correction Order in 1998 which he breached.

19 Fourthly, as the judge also said, in January 2009, the appellant was granted parole from the sentence imposed on him on 22 January 2007 and was still on parole when he committed the subject offences only eight months later. As the judge said, that was a significant aggravating feature.

20 Fifthly, as the judge observed, because the subject offences were committed while the appellant was released on parole, the judge was bound by s.16(3B) of the Sentencing Act 1991. Consequently, in the absence of exceptional circumstances, the sentence which his Honour imposed had to be served cumulatively on so much of the remainder of the sentence of 22 January 2007 as the appellant will now be required to serve.

21 It was contended before the judge, and again before this court, that there are exceptional circumstances in the appellant's mental state and impairment; the late diagnosis of his condition; and the fact that, more recently, he has been assessed as suitable for services to be provided under the Disability Act 2006. But the judge was not persuaded that they were exceptional circumstances and I am unable to discern any error in that conclusion.

22 Counsel for the appellant called in aid the decision of this court in Gray v R[1] in which the psychotic state of an offender, and the likely beneficial effects of a shorter than usual non-parole period, coupled with a regime of psychiatric treatment, were held to amount to exceptional circumstances. But the facts of that case were very different to this. The offender there had a much lesser criminal history, had previously responded well to treatment, had lapsed only because he had fallen between the cracks of the care system which he needed, had the care and support of family and reasonable prospects of rehabilitation, and stood to be sentenced for fewer offences.

23 More generally, it should be understood that the idea of exceptional circumstances for the purposes of s 16(3B) of the Sentencing Act 1991 is a both relative and protean conception of which the application calls for a determination of fact and degree on the basis of the facts and circumstances of the case in issue. It does not follow that just because psychiatric or other disability may be held to be exceptional circumstances in one case, it will do so in another.

24 Evidently, the judge was mindful of the principles of totality considered in R v Mill;[2] R v Postiglione;[3] DPP v Grabovac;[4] and GJW v R,[5] to all of which his Honour referred, and thus of the need to moderate individual sentences and the level of cumulation as between the charges to reflect and give due weight to the principle of totality as explained by Ormiston JA in DPP v Grabovac. It appears to me from the relatively moderate individual sentences and orders for cumulation which his Honour made that his Honour did just that.

25 Counsel for the appellant argued that, even if that were so, the non-parole period was manifestly excessive, in that, because the appellant's parole in relation to the sentence imposed on 22 January 2007 was revoked on 14 October 2009; and because, by reason of s 16(3B), the remainder of the 2007 sentence must be served cumulatively upon the subject sentence: (1) the earliest date on which the appellant will be eligible for parole will be 2 February 2015 (which is to say five years, four months, one week and seven days (1960 days) after his initial remand in September 2009); and (2) the earliest date on which he may complete all of the sentences remaining to be served will be 31 May 2017 (which is to say seven years, eight months, one week and three days (2809 days) after his arrest on 29 September 2009). Counsel also put in support of that contention that the non-parole period, at approximately 70 per cent of the head sentence, was stern given the appellant's pleas of guilty, disadvantaged background, remorse, admissions and time on remand for other offending.

26 I allow that, the non-parole period is stern. In all the circumstances, I think that it would have been open in the exercise of discretion to set a lesser period. But, essentially, that was a decision for the judge to make and it is apparent from his Honour's very careful exposition of his sentencing reasons that he was considerably informed in his view by the appellant's previous failures to avail himself of more favourable sentencing dispositions, his dim prospects of rehabilitation and the consequent high risk to the community of further offending. As his Honour put it:

it is impossible to view your prospects as being anything other than dim at this point, given your raft of health and mental issues, your long-term use of a variety of drugs and your continual breach of the law and of court and/or parole orders designed to avoid further breaches of the law. As I have made clear, I do give recognition to some of the mitigating aspects of your illness and condition in moderating a number of purposes of sentencing in this case. Against that, your long-term history, long-term use of a variety of drugs in tandem with your mental condition and your impairment, lead me to conclude that you are a person of considerable danger to the community. To an extent, that is self-evident given your recent history over the last four years.

27 I see no error in that. A non-parole period is the minimum period of imprisonment which a judge considers justice requires to be served.[6] It depends upon considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, including such advantages to the community as release on parole is thought likely to confer. It follows as Mason CJ and McHugh J said in Bugmy[7] that a judge will be influenced in setting a non-parole period by the judge's assessment of the offenders prospects of rehabilitation and if the judge's assessment of those prospects is that they are 'minimal or bleak', the non-parole period is to be set in light of that assessment along with the other factors relevant to the duration of the minimum term.

28 Views may differ as to whether the appellant's prospects of rehabilitation were as dim as the judge assessed them to be. But such differences of view as there may properly be are at the margin. I am unable to detect error in the judge's conclusion that the appellant is a considerable danger to the community from which it requires protection. It follows, in my view, that the judge was entitled to conclude, as evidently he did, that a non-parole period of four and a half years was appropriate in all the circumstances.

29 In substance, the submissions advanced under Ground 2 repeat some of those put under Ground 1. Counsel for the appellant again called in aid the decision of this court in Gray v R,[8] in which it was held that the judge in that case failed to take into account that, because of the offender's mental state and need for a substantial period of supervised treatment, it was likely to be more just and more effective in preventing re-offending if the offender were released earlier than usual into the community under close supervision monitoring and treatment, as had been proposed by his treating psychiatrist. Counsel submitted that the judge here had erred in a similar respect by failing to temper his concerns about the need for community protection with recognition of the appellant's reduced moral culpability the result of his mental condition.

30 I am not persuaded by that either. In fact, there are very few relevant similarities between this case and Gray. Gray's prospects of rehabilitation were reasonable, he had support and he had been prescribed a course of treatment which would function best if he were released early on parole. None of that is so here. It is also apparent that the judge recognised the mitigatory effects of the appellant's mental state upon his moral culpability and took them into account. As his Honour said:

Again, the prosecution did not quibble with the fact that in sentencing there should be some lessening of your criminal or moral culpability pursuant to the first principle stated in the six non-exhaustive propositions in the case to which I have referred, R v Verdins.[9] Again, I accept this is so.

31 Given the nature and gravity of the offending, the appellant's antecedents and the judge's assessment of the appellant's prospects of rehabilitation and consequent danger of too early a release into the community, I am not persuaded that the judge erred in setting the non-parole period which he did.

33 For the reasons given by Nettle JA, I would also dismiss the appeal.

34 I too would dismiss the appeal for the reasons given by Nettle JA.

35 The order of the Court is that the appeal is dismissed.

[6] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 625; Hili v R [2010] HCA 45; (2010) 272 ALR 465, 476 [40].

[7] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 532, in diss, but not on this point of principle.

Singh v The Queen [2011] VSCA 333

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Judgment (49 paragraphs)

Singh v The Queen [2011] VSCA 333 (14 October 2011)

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Cases Cited (6)