Walker v The Queen; Dargan v The Queen [2019] VSCA 137

1 The applicants, Micah Walker ('Walker') and Matthew Dargan ('Dargan') each pleaded guilty before the County Court to one charge of armed robbery. In addition, Walker pleaded guilty to one charge of committing an indictable offence whilst on bail.

2 After pleas presented on their behalf, Walker and Dargan were each sentenced to twelve years' imprisonment on the charge of armed robbery. In addition, Walker was sentenced to 3 months' imprisonment for the summary offence of committing an indictable offence whilst on bail, that term to be served concurrently with the sentence imposed in respect of the armed robbery. The judge directed, in respect of each applicant, that they serve a minimum of eight years and six months' imprisonment before they become eligible for parole.[1]

3 Walker and Dargan each seek leave to appeal against the sentences imposed on them on the sole ground that the sentences were manifestly excessive.

4 In its written case, the respondent accepted - correctly - that the sentence of 3 months' imprisonment imposed on Walker for committing an indictable offence whilst on bail was manifestly excessive, since it equated to the maximum sentence prescribed for that offence. The respondent acknowledged that the sentence imposed on each applicant for the offence of committing an armed robbery was very stern, but contended that that sentence was not manifestly excessive in all the circumstances. At the commencement of oral submissions, the respondent accepted that the sentences imposed on each applicant were manifestly excessive, and conceded that each applicant should be granted leave to appeal, and that, in each case, the appeal be allowed.

5 In our view, the concession so made by the respondent was responsible and correct. That concession does not, however, relieve the Court from considering for itself the ground of appeal relied on by each applicant. For the reasons that follow, we would grant leave to appeal, and allow the appeal, in each case.

6 The offence of armed robbery was committed by the two applicants, Walker and Dargan, on the premises of Celebrations Bottle Shop in Daylesford on 2 May 2017. At the time of the offence, the primary victim, Carmello Dinami, was working in the shop as a store attendant.

7 At approximately 6.30 pm, Dargan walked into the shop. He was wearing hooded clothing to disguise his face and he had with him a large kitchen knife, which he did not produce during the armed robbery that ensued. At the time he entered the shop, Mr Dinami was serving a customer, Alex Pearce, who had with him his 17 month old son in a pram. Dargan walked rapidly around Mr Pearce, and behind the counter. Mr Pearce, who had not apprehended Dargan's intentions, commenced to leave the premises. As he was about to exit the door pushing the pram with his son in it, Walker entered the premises, also wearing hooded clothing to disguise his face. As he came face to face with Mr Pearce, Walker pointed an imitation handgun at him. As a result, Mr Pearce immediately backed off towards the rear of the store.

8 When Dargan walked behind the service counter, he twice pushed Mr Dinami quite aggressively from behind the till, and he demanded cash. Walker lent over the front counter and threatened Mr Pearce by pointing the handgun directly at him. During this stage of the incident, another store attendant, Reece Watmore, was working at the back of the store near the refrigerators. As Mr Pearce and his infant moved swiftly in that direction, Watmore, with good presence in mind, assisted them take shelter in the refrigerator, from where they telephoned the police. Watmore then re-entered the store and remained there with his hands up.

9 Meanwhile, while he was at the front counter, Walker pointed the handgun at Mr Dinami, pushed the barrel of it in his face, and yelled 'get the cash'. Dargan remained behind the counter and approached one of the tills, thus barring Mr Dinami from leaving the counter. Dargan and Walker each opened separate tills and placed the cash that was in them into their pockets. They directed Mr Dinami to open plastic bags for Dargan to fill with cigarettes, which were stored in shelving behind the till. Dargan proceeded to fill five plastic bags full of cigarettes. As he did so, Walker filled two pillow cases, that he had brought with him, with 14 bottles of alcohol. Walker returned to the counter, and pointed the handgun again at Mr Dinami, and then at Mr Watmore, who had remained standing at the rear of the shop with his hands up.

10 Walker and Dargan then left the shop. As they did so, they brushed past another customer, John Collins, who was entering it. They pushed him aside, and Walker, with his gun raised and pointed, said to Mr Collins 'Get out of the way or you'll get a bullet'. Walker and Dargan then ran down a laneway behind the premises to a vehicle which they had left there for their escape.

11 In the course of the armed robbery, the two applicants together stole $1,890 in cash from the cash registers, bottles of alcohol the total value of which was $1,006, and $8,848 worth of cigarettes and tobacco. The robbery lasted for a total of two and a half minutes. Much of the incident was captured on CCTV footage. That film clearly depicts Walker pointing the imitation handgun into the face of Mr Dinami, and a large knife can be seen in the trouser pocket of Dargan. That knife was later located by police in the laneway behind the premises. After Walker and Dargan had departed from the store, Mr Dinami can be seen to be, understandably, particularly traumatised and distressed.

12 Two weeks later, on 16 May 2017, police executed a search warrant at premises at Sunbury, where they located items that had been stolen in the course of the armed robbery. Walker was arrested at the premises and conveyed to Bacchus Marsh Police Station. When interviewed, he made full admissions in relation to his involvement in the armed robbery. He denied some details, such as threatening the victims with the handgun, but he stated that he was responsible for the armed robbery, and that he was in possession of the handgun, which he described as a 'toy gun'.

13 At the time of the offence, Walker was on bail for unrelated offences which included threatening to inflict serious injury, contravening a family violence intervention order, unlawful assault, and unlawful possession.

14 Subsequently, on 30 May 2017, Dargan was arrested while staying at an abandoned house in Heathcote. He directed investigators to two packets of tobacco which had been stolen in the course of the robbery. When interviewed at Bacchus Marsh Police Station, he exercised his right not to answer the questions put to him. At the time of the offence, Dargan was on a Community Correction Order ('CCO') for theft, assault, weapons and drug offences.

15 Subsequently, Dargan pleaded guilty at a committal mention hearing on 17 August 2017, and Walker pleaded guilty at a committal mention hearing on 14 September 2017.

16 At the time of the offences, each applicant was 29 years of age, having been born in 1988. They both had previous convictions, albeit for offending of a far lesser scale than that in which they engaged in the present case.

17 In November 2012, Walker was before the Heidelberg Magistrates' Court on a charge of unlawful assault. The matter was adjourned without conviction for a period of six months, after which the charge was dismissed. Subsequently, in September 2015, he was before the Werribee Magistrates' Court on two charges of theft from a shop and one charge of theft. The matter was adjourned without conviction for twelve months, on condition that Walker engage in the 'First Step Program'. Walker complied with the terms of the bond, and the charges were dismissed in September 2016.

18 Dargan was fined by the Broadmeadows Magistrates' Court on one charge of wilfully damaging property in April 2014. Subsequently, in October 2014, he was sentenced to two days' imprisonment by the Bendigo Magistrates' Court on one charge of failing to answer bail. The time he had spent in custody was reckoned as the period of imprisonment served under the sentence. On 16 June 2016, Dargan was dealt with by the Bendigo Magistrates' Court on a number of charges, including three charges of possession of a controlled weapon without excuse, a charge of possession, use or carriage of a prohibited weapon without exemption or approval, charges of using cannabis and amphetamine, and other drugs of dependence, and charges of unlawful assault and wilful damage of property. He was sentenced to an aggregate term of 125 days' imprisonment, with the time already spent in custody (125 days) reckoned as the period of imprisonment served. In addition, the CCO previously referred to was ordered with a duration of twelve months commencing 16 June 2016 with a condition that he serve unpaid community work for 100 hours. It is relevant that that order was still current at the time of the offending in the present case.

19 Walker was born in September 1988. When he was two years of age, his parents separated, and he was brought up by his mother until the age of 16 years. He described his relationship with his mother as difficult. He completed his secondary education at Gisborne High School at Year 9 level. After leaving school, at the age of 16 years, he commenced to live with his father. He commenced and completed a four year apprenticeship as a fitter and turner. Subsequently, when he was 21 years of age, he commenced a tiling business. He conducted that business for about four years. In the meantime, he was in a serious relationship with a young woman for four years from the age of 17 years. He then formed a relationship with another woman. They had a son, who was born in 2012. Their relationship ended due to Mr Walker's use of illicit drugs.

20 Walker maintained that during his childhood he was subjected to sexual assaults by a number of persons, including a teacher, a school principal and his stepfather. He developed symptoms of mental ill-health, commencing with signs of paranoia, in his early twenties. His response to his confused thoughts was to self-medicate using illicit substances. In 2013, he referred himself to Headspace (in Geelong), which resulted in an involuntary admission to Barwon Health. He subsequently received follow up treatment by Headspace for a period of six months.

21 Despite that treatment, Walker's symptoms continued. He ceased to take the anti-psychotic medication that was prescribed for him, in the erroneous belief that it was harming him.

22 In June 2014, Walker attempted to commit suicide. He was admitted to Goulburn Valley Hospital in Shepparton from 30 June 2014 to 13 August 2014, where he was formally diagnosed with paranoid schizophrenia and post-traumatic stress disorder. He was prescribed a number of different medications for his condition. Notwithstanding that treatment, he continued to experience delusional and paranoid thinking. As a consequence, in February 2015, he commenced to attend First Step in St Kilda. The report of that institution noted that through his engagement at First Step, he had developed a better understanding of his mental illness and its underlying causes, and that his engagement with treatment had been consistent and positive. Nevertheless, his mental health remained fragile.

23 Subsequently, in September 2016, Walker was arrested by police after he had damaged his mother's vehicle. At that time his mother reported a deterioration in his mental state during the preceding six months in the context of his illicit drug use. Walker was taken by the police, who arrested him, to the Northern Hospital under the Mental Health Act 2014. There he presented with persecutory and grandiose beliefs and he was aggressive during the assessment. He was then transferred to Barwon Health (Geelong) for hospitalisation in its psychotic unit. He remained at that hospital for three days and then was discharged back to the care of First Step.

24 On the plea, counsel for Walker relied on reports of Professor Andrew Carroll, a forensic psychiatrist, and Dr Pandurangi, a consultant psychiatrist. Professor Carroll examined Walker in May 2017. He diagnosed Walker as suffering from paranoid schizophrenia. Professor Carroll could not exclude the possibility that Walker's episodes of acute mental disorder were due to recurrent substance induced psychotic mood episodes, rather than a primary schizophrenic illness. He also diagnosed Walker to have a substance abuse disorder. He expressed the view that Walker would probably be at risk of a recurrence of psychotic symptoms, if his anti-psychotic medication was ceased for a long period.

25 Dr Pandurangi examined Walker in October 2017. He noted that Walker had experienced episodes of paranoid psychotic illness beginning in his early 20s, and that he had been diagnosed to have schizophrenia. He also noted that after the initial period of hospitalisation in 2014, he had suffered some relapses in the context of the use by him of illicit drugs, and they did not appear to be typical relapses of a schizophrenic illness. Dr Pandurangi considered that Walker had an enduring condition of paranoid schizophrenia with intermittent relapses to florid psychosis. He stated that the likelihood of relapse depended on his adherence to psychiatric treatment, and his abstinence from the use of illicit drugs.

26 Dr Pandurangi considered that Walker's offending in the present case was in the context of heavy use of illicit drugs in combination with only sporadic adherence to his medication, and stress relating to family issues. Dr Pandurangi then stated:

This would have affected his ability to make calm reasoned decisions or exercise appropriate judgment. However, there is no clear indication that the alleged offences were causally linked to his underlying mental illness or affected his ability not to understand the wrongfulness of his actions.

27 Dr Pandurangi also expressed the view that Walker would find ongoing incarceration stressful compared to other people who did not suffer from his mental illness. His prospects of rehabilitation were positive, provided that he was able to address his dynamic risk factors for further offending.

28 On the plea, counsel relied, first, on Walker's early guilty plea, which, it was submitted, demonstrated a willingness by Walker to facilitate the course of justice. At the time of the plea hearing, Walker read to the victim, Mr Dinami, an apology for the trauma to which he had been subjected. Counsel noted that Walker had limited previous convictions, and that none of them had resulted in a term of imprisonment.

29 Counsel placed particular emphasis on Walker's history of mental illness. At the time of the offending, he was homeless, living in his motor vehicle, and self-medicating with illicit substances. It was submitted that Walker's mental illness at the time was relevant, as a mitigating circumstance, in accordance with the first five principles identified by the Court in R v Verdins.[2] Counsel also noted that, since he had been incarcerated, Walker had withdrawn from the effects of illicit substances, and he had enrolled in various courses. Counsel contended that, by reason of those mitigating circumstances, the judge should impose a sentence of imprisonment of less than one year, and a community correction order. Unsurprisingly, the judge, readily, rejected that proposition as being a realistic reflection of the gravity of Walker's offending. Accordingly, counsel submitted, by way of alternative, that the judge should impose a sentence that involved a non-parole period that was shorter than ordinarily would be the case.

30 Dargan was also born in September 1988. His mother was a Yorta Yorta woman, but she had been removed from her parents, and adopted by a non-Aboriginal family, when she was a small child. Dargan's father was of Irish descent. He was overtly racist, and did not respect the Aboriginality of his wife and children. As a result, Dargan's childhood was marked by severe family violence, both physical and emotional, perpetrated by his father against all the children. At one point, Dargan suffered fractured ribs at the hands of his father, and, on another occasion, he sustained a broken jaw. At the age of 13, he was admitted to Echuca Hospital coughing blood and walking with a limp after being bashed by his father.

31 At the age of 16 years, after sustaining another beating, Dargan left the family home. He moved to Queensland with a friend. There he was homeless for a time, before he commenced a relationship with a woman called Jess. She became pregnant to him, and they had a child (a son) who was born in 2005. That child died ten years later in 2016. In the meantime, in 2010, Dargan, having moved back to Victoria, commenced a relationship with a woman called Karissa. They resided with her mother. During that time, he was heavily using drugs. Following that relationship, he returned to live with his first partner, Jess. In addition to their son, she had two other children by another man. The renewed relationship between Dargan and Jess was quite difficult. They were evicted from the house they were occupying in Frankston. As a result, they became homeless, spending periods of time living in a vehicle. At other times they accessed accommodation provided by the Salvation Army. In time, they moved to Ararat. At that point, Dargan and his partner Jess parted company. Dargan continued living in a homeless state. Eventually he ended up in Kyneton, where he 'couch surfed' for about six months, and he lived in a motor vehicle. It was in that context that Dargan became involved in the armed robbery that he and Walker committed on 2 May 2017.

32 In terms of his education, Dargan left school after completing Year 7. He began work at a butcher's shop at the age of 14, but he did not complete an apprenticeship. In the ensuing years, he worked in a number of different capacities, including in abattoirs, as a tiler, a plumber, a shearer, and a spray painter, and constructing fruit bins.

33 Dargan began using illicit drugs when he was 14 years of age. In the following years, he used amphetamines, ecstasy, cocaine and cannabis. From the age of 20 years he used methamphetamines. In 2005, he was admitted to Bendigo Hospital after he had attempted to commit suicide. In the following years, he engaged in other self-harm attempts. At the time of the offending, he was using methamphetamine, cannabis and LSD on a daily basis.

34 In March 2018, Dargan was examined by Ms Gina Cidoni, a consultant psychologist, at Barwon Prison. Ms Cidoni diagnosed Dargan to have symptoms of unstable mood with experiences of depression and hypomania, that were consistent with a bipolar 1 disorder according to the Diagnostic and Statistical Manual for Mental Disorders 5 ('DSM-5'). Ms Cidoni considered that those symptoms could be the result of the direct physiological effects of drug abuse, but that it was unlikely that that was the case at the time of examination. She considered that the residual symptoms of the bipolar disorder were being contained to a level with current medication being provided to Dargan.

35 Ms Cidoni noted that at the time of offending Dargan was heavily abusing methamphetamines, LSD and cannabis. As a consequence, he was disinhibited and behaving in an irrational manner. After being incarcerated, Dargan had used his time in prison effectively, abstaining from the use of drugs, and regularly taking prescribed medication for his mental state. Nevertheless, he continued to struggle with fluctuating mood swings, which would have the effect of rendering incarceration more difficult.

36 On the plea, counsel for Dargan relied, in mitigation, on the guilty plea which was made at the earliest opportunity. Counsel also noted that Ms Cidoni stated that at the outset of her examination Dargan had expressed his remorse and said that he was appalled at his behaviour. Counsel further contended that, based on Ms Cidoni's report, the principles specified in points 1, 3, 4 and 5 in Verdins would have application as mitigating factors. In addition, it was submitted, Dargan's personal history, having been subjected to severe family violence when he was young, and having confused attitudes towards his Koori heritage, were prominent factors in his anti-social and offending behaviour, and therefore were relevant to an assessment of his moral culpability in accordance with the principles stated by the High Court in Bugmy v The Queen.[3]

37 Counsel also noted that Dargan did not have an extensive criminal history, and that this was his first offence of armed robbery. While he was on remand, Dargan's mental health had improved, he had abstained from drugs, and he had completed all courses that were available to him. In addition, he had embraced his Koori heritage and participated in the Torch program that was available to Indigenous prisoners.

38 In his reasons for sentence, the judge assessed the culpability of each applicant as high. He considered that this was a very serious example of an armed robbery, with a number of aggravating features, including the following: the use of a handgun, the threats made to the victims, the fact that the armed robbery was carried out in the presence of members of the public, the fact that a soft target had been chosen by the applicants, there was some planning, and the two applicants had sought to disguise themselves by using hoods. The judge also observed that the role each offender played appeared to be pre-planned. Accordingly, his Honour regarded the armed robbery as being 'one of utmost seriousness'.[4]

39 As mitigating factors, the judge took into account the early pleas of guilty made by both Walker and Dargan, and the fact that each of them had limited previous convictions. He also noted that they both had had difficult social upbringings. In particular, Dargan had been subjected to violence at the hands of his father, and Walker had been affected by the early death of his father. In addition, Walker had been subjected to sexual abuse as a child.[5]

40 The judge noted that as a result of their difficult backgrounds, both Walker and Dargan had turned to drugs and had become polysubstance drug abusers. Having examined the psychiatric evidence presented in relation to both Walker and Dargan, the judge was not satisfied that the principles, stated in points 1 to 4 of Verdins, applied to either of them.[6] However, the judge accepted that point 5 of the principle stated in Verdins would operate in respect of each of Walker and Dargan, because, as a result of their underlying mental conditions, they would find a term of imprisonment more difficult than a normally healthy prisoner.[7]

41 The judge accepted that both Walker and Dargan had demonstrated genuine remorse for the ordeal to which they had subjected the victims.[8] He accepted that both of them had taken genuine steps to try to put the crime behind them and rehabilitate themselves while they were incarcerated. He noted that as a result of the backgrounds of each of Walker and Dargan, the principle outlined in Bugmy would be given 'full weight'.[9] He accepted that both Walker and Dargan had the capacity to live a crime free life.[10]

42 In support of the contention that the sentence imposed on Walker was manifestly excessive, counsel relied on a number of factors, including the following. First, Walker had made an early plea of guilty which, in the circumstances, represented a true acknowledgment by him of his criminal responsibility and remorse. Secondly, there was significant evidence, apart from the plea, of Walker's remorse. In that respect, counsel referred to the letter written by Walker to the primary victim of the robbery (Mr Dinami), to expressions of remorse made by Walker to Dr Pandurangi, and to the observations of Walker via his sister-in-law, Ms Godfrey. In that connection, counsel relied on the finding by the sentencing judge that Walker's letter of apology to Mr Dinami was a genuine apology and an acknowledgement by him of the seriousness of his crime.[11] Thirdly, counsel relied on the limited nature of Walker's previous criminal history. Fourthly, the weapon used by Walker was an imitation firearm which could not be fired.

43 Fifthly, counsel relied on the evidence of Dr Pandurangi and Associate Professor Carroll that at the time of the offending, and while he was in prison, Walker suffered from paranoid schizophrenia and substance abuse disorder. It was conceded that, in light of the opinion expressed by Dr Pandurangi, the principles referred to in points 1 to 4 of Verdins did not have application; however, it was contended, Walker's psychiatric history was relevant to an assessment of his moral culpability in the offending.

44 The sixth factor, relied on by counsel, was that, as a result of Walker's mental illness, a sentence of imprisonment would be more burdensome on him. The seventh factor, counsel submitted, is that Walker has good prospects of rehabilitation, particularly in light of his limited criminal history, his remorse, the efforts that he has made to rehabilitate himself while in custody, the fact that in the past he has been able to live a productive law-abiding life, and the fact that his mental health has stabilised. Finally, counsel relied on current sentencing practices. In that respect, he referred to a number of decisions of this Court involving incidents of armed robberies which, he contended, demonstrated that the sentence imposed on his client was well outside the range of the sentences imposed in relevantly similar cases.[12]

45 As noted, counsel also submitted that the sentence imposed on the summary charge was manifestly excessive. As we have already mentioned, and as the Director conceded in its written case, that ground is well made out. There was no basis upon which the judge could, in the circumstances, have sentenced Walker to the maximum prescribed sentence for the offence of committing an indictable offence while on bail.

46 In respect of the re-sentencing of Walker, counsel relied, principally, on the matters that were advanced on his behalf on the plea, and the findings made in his favour, in respect of those matters, by the sentencing judge. Counsel tendered documents relating to courses which had been undertaken by Walker since sentencing. In particular, a letter signed by the Senior Clinician of Caraniche stated that since Walker had arrived at Hopkins Correctional Centre on 11 August 2017, he had completed a number of drug and alcohol programs. In particular, he had undertaken the following courses: a six hour substances program relating to the effects of methylamphetamine; a 24 hour drug program; a six hour 'Substances and Me: Alcohol and Other Drugs ... and Depression' program; a six hour 'Substances and Me: Alcohol and Other Drugs ... and Stress Management' program; and a 44 hour semi-intensive program that he was certified to have completed on 27 February 2019.

47 The documents also included an advice signed by the clinician of Caraniche entitled 'Long Program Completion Advice' noting that Walker had attended and completed the 44 hour course over a period of twenty two sessions between 14 January and 27 February 2019. The advice rated Walker's attendance and punctuality, participation, motivation and commitment to the program and to addressing substance issues, and his completion of group assignments, as 'excellent'. The narrative section of the advice noted that Walker had participated fully in the program, completing all tasks, and demonstrating a strong commitment to the program. Counsel relied on that documentation in support of the submission that, while in custody, Walker had sought to address the principal factor of re-offending, namely his methylamphetamine addiction. Counsel also noted that Walker had been using his time productively while in custody, working five days per week in a trade related activity.

48 Counsel for Dargan submitted that, although the offending committed by both Dargan (and Walker) was very grave, it did not warrant the imposition of a sentence for 12 years' imprisonment.

49 In support of that submission, counsel pointed, first, to the fact that Dargan had pleaded guilty, and that his plea was an early plea, and was attended by genuine remorse. Further, it was submitted, Dargan had, before 2016 (which was the year in which his son died), a very limited criminal record. During his formative years, Dargan had been subjected to severe violence and bullying, which had caused him to leave home at an early age, and to become periodically homeless. It was in that environment that he was exposed to, and commenced to use, illicit drugs. In 2016, his life became more chaotic as a result of the grief that he experienced following the death of his ten year old son. Further, as a consequence of Dargan's bipolar disorder, he would find a sentence of imprisonment more burdensome than otherwise.

50 Counsel for Dargan further contended that the sentence imposed in this case was higher than any other sentence imposed on an individual charge of armed robbery since 2005, except for the case of Binse, which was a much more serious case of armed robbery than the present case.

51 In respect of the re-sentencing of Dargan, counsel relied, substantially, on the matters that have been put on behalf of Dargan on the plea. He submitted that those matters constituted significant mitigating circumstances. In particular, counsel submitted that Dargan's traumatic and difficult upbringing had precipitated his introduction to illicit drugs, and to the kind of offending which is ordinarily concomitant with drug abuse. He noted that in 2016, one year before the offending in this case, Dargan's 10 year old son had died, and that as a result, Dargan's condition had deteriorated further, leading to a period of prolific drug use and reckless behaviour. Counsel submitted that those circumstances were a necessary background to the offending in the case, and were relevant as factors mitigating his subjective culpability for the offending.

52 In addition, counsel tendered a number of certificates relating to courses undertaken by Dargan while in custody, and notifications of negative drug screens. He also tendered a letter from the Provisional Psychologist of the Caraniche program at Barwon Prison. The letter noted that after Dargan was placed at that prison, he commenced the 44 hour drug and alcohol program on 9 April 2018. Dargan attended 22 hours of that program before he was moved to another unit where it was not available. Following that move, Dargan opted to engage in individual counselling, and he commenced that program on 4 July 2018. Since then, he has attended 37 sessions of individual counselling.

53 The letter also noted that throughout that treatment, Dargan has maintained consistent and punctual attendance, he has had a positive attitude to the counselling, and engaged openly in the sessions. He has discussed the development of his substance use, and the issues that exacerbated it, and has gained insight into his own relapse cycle. In addition to attending that program, Dargan also attended a 'Talking Change Program' at Barwon Prison between 3 October and 12 October 2018, and a three day 'Beyond Survival Aboriginal Men's Cultural Healing Program' conducted by the Victorian Aboriginal Child Care Agency in May 2018. Counsel submitted that as a result of Dargan's participation in those programs, the Court should consider that he has a good prospect of successful rehabilitation upon the completion of his sentence.

54 As mentioned, at the commencement of oral argument, counsel for the respondent conceded that the sentence imposed on both Walker and Dargan, for the offence of armed robbery, was manifestly excessive, and that, accordingly, in each case the applicant should be granted leave to appeal, and the appeal against sentence allowed.

55 On the issue of re-sentencing the applicants, counsel noted that there were a number of serious aspects of the offending in respect of both Dargan and Walker, including: the offence was committed in company; the manager of the bottle shop (Mr Dinami) was robbed at gunpoint; during the offence, a store assistant and two customers (Mr Pearce who was with his very young child and Mr Collins) were also threatened; both offenders acted in an extremely aggressive manner; there had been some planning of the offence; both offenders sought to disguise themselves; Walker committed the offence while he was on bail; the offence lasted two and a half minutes; as a consequence, both Walker and Dargan netted a reasonably substantial amount of cash, alcohol and cigarettes, the total value of which was $11,384; and the impact of the offence on the primary victim (Mr Dinami) was most profound. In those circumstances, it was submitted, the judge was justified in concluding that the gravity of the offence, and the subjective culpability of both Walker and Dargan, was high.

56 Counsel further contended that, following the decision of the High Court in Director of Public Prosecutions v Dalgliesh (a pseudonym),[13] the judge was entitled to give less weight to the statutory factor of current practices in the exercise of the sentencing discretion, particularly in light of the observation by this Court in Lord v The Queen[14] as to the inadequacy of current sentencing practices in respect of the offence of armed robbery.

57 Counsel for the respondent further contended that the judge properly identified the personal circumstances and relevant mitigating factors of each of Walker and Dargan. In respect of Walker, the judge accepted that he had suffered from paranoid schizophrenia, and found that as a consequence Walker would find imprisonment more burdensome. In respect of Dargan, the judge accepted that he suffered from underlying bipolar disorder which had the effect that imprisonment for him would also be more burdensome. The judge also correctly acknowledged Dargan's deprived social background including his exposure to violence at a young age, and accepted that the sentence was mitigated on account of those circumstances in accordance with the decision of the High Court in Bugmy.

58 In conclusion, counsel for the respondent submitted that, in view of the serious nature of the offending in this case, the sentencing purposes of general deterrence, denunciation and specific deterrence must be given prominent weight. He submitted that the principal aggravating features of the case - the level of aggression displayed by the applicants, the use by them of a firearm (albeit imitation), and the selection by them of a soft target - were matters that were all too commonly observed in offences of this type, and accordingly it is necessary that the courts impose sentences that are of sufficient severity to deter other like-minded individuals from engaging in similar conduct.

59 Notwithstanding the concession made by the respondent, that in each case the sentences imposed in respect of the offence of armed robbery were manifestly excessive, it is the duty of the Court to determine for itself whether, in each case, that ground of appeal has been made out.

60 In order to establish the ground of appeal relied on, that the sentence imposed was manifestly excessive, each applicant must demonstrate that the sentence of 12 years' imprisonment, imposed in respect of the offence of armed robbery, was wholly outside the range of sentences that were available to the sentencing judge.[15] In the absence of a ground relying on specific error by the judge in the exercise of his sentencing discretion, each applicant must demonstrate that the sentence imposed on him was so excessive as to bespeak error by the judge in the exercise of the sentencing discretion, so that it may be concluded that the sentence imposed in the particular case was not open in all the facts and circumstances of the case.[16]

61 In considering the proposed ground of appeal relied on by each applicant, the relevant starting point is an appropriate assessment of the gravity of the offending engaged in by that applicant.

62 On any view of the case, it may be readily concluded that the offence committed by each of them was particularly serious. The maximum sentence, prescribed by statute, for the offence of armed robbery, is 25 years' imprisonment, signifying the inherent seriousness of that form of offending. In the case of such offences, the sentencing purposes of general deterrence, denunciation, and protection of the community, are given particular weight.

63 In the present case, the offence committed by the two applicants occurred in circumstances which made it a serious instance of armed robbery. In particular, as noted by counsel for the respondent, the offending was preceded by a degree of planning. Each applicant wore a disguise, they each had particular defined roles, and the target of the armed robbery had obviously been carefully selected. In addition, Walker and Dargan each carried weapons. The production and intimidating use by Walker of the imitation handgun was an aggravating feature of the robbery. So, too, were the serious threats of violence directed both to Mr Dimani, and to the two customers, Mr Pearce and Mr Collins. It is a matter of particular concern that the applicants proceeded with the armed robbery, and engaged in that form of intimidation, in circumstances in which Mr Pearce had his 17 month old son with him in a pram.

64 It was a necessary consequence of the conduct engaged in by each applicant that those who were present in the shop, and in particular Mr Dimani, experienced a significant degree of trauma. It is also a matter of concern that the target that was selected for the armed robbery, the shop, comprised premises which, it could readily be expected, might be frequented by members of the public at the time at which the robbery was planned to take place. Finally, it is also a matter of aggravation that, at the time of the offending, Walker was on bail, and Dargan was serving a CCO.

65 In those circumstances, it was appropriate for the judge to consider that the offence committed by each applicant was serious. Plainly, the objective gravity of the offending was high. The judge classified the armed robbery as 'being one of utmost seriousness'.[17] While the judge was correct to take a serious view of the nature of the offending, we do not consider that that classification, if meant literally, could be correct. Without in any way diminishing the seriousness of the offending in this case, there have, however, come before the courts, and on appeal before this Court, a number of cases of armed robbery, the objective gravity of which would be fairly characterised as being substantially higher than in this case.

66 Pausing there, in the absence of mitigating circumstances, the offence of armed robbery committed by each applicant merited serious punishment. However, the sentence of 12 years' imprisonment, in each case, was, on its face, particularly high. Neither applicant had a previous conviction for armed robbery, or for offending which could, in any way, be equated with the offending in this case in terms of its gravity, or the moral culpability attaching to it. Thus, while the starting point for analysis in this application was an assessment of the gravity of the offending, that assessment, standing alone, makes it difficult to justify the sentence imposed on either applicant, or any sentence within a measurable range of it.

67 However, a consideration of each application does not stop there. For, in each case, as counsel for the applicants have pointed out, each applicant was entitled to rely on, and be given proper credit for, a number of mitigating factors. It is appropriate that we briefly consider those mitigating factors in respect of each applicant separately. However, before doing so, a common mitigating factor was that each applicant pleaded guilty to the offences, with which they were charged, at an early stage. Plainly, the pleas of guilty had utilitarian value, and demonstrated a readiness by each applicant to facilitate the course of justice. In particular, by pleading guilty at an early stage, each applicant spared the relevant witnesses, and in particular Mr Dinami, Mr Pearce, Mr Collins and Mr Watmore, the stress and anxiety which necessarily would have been aroused by the necessity of facing Court, giving evidence and undergoing cross-examination, in relation to the traumatic events that constituted the commission of the armed robbery. In addition, the judge accepted that the plea of guilty, by each applicant, was accompanied by genuine remorse expressed by them in respect of their offending.[18]

68 We turn, then, to the mitigating factors relevant to each individual applicant. In addition to the terms of the plea, the judge accepted that Walker had otherwise manifested genuine remorse in respect of his offending. He accepted that a letter written by Walker, addressed to the primary victim, Mr Dinami, was a genuine apology and an 'acknowledgment by him of the seriousness of his crime'.[19] Walker had particularly limited previous convictions. As noted, he had twice come before the courts on charges which were far less serious than the offending in this case. On each occasion, the charges had been adjourned upon Walker entering into an undertaking to be of good behaviour. In each case, Walker had fulfilled that requirement and the charges had been dismissed.

69 As earlier mentioned, Walker had been subjected to sexual abuse at an early age. It would appear, from the report of Professor Carroll, that Walker is still reticent to discuss that aspect of his life. However, notwithstanding the progress that he made in his education and in his career, his life has been beset with drug abuse and with the onset of serious mental ill-health. While it could not be demonstrated that Walker's schizophrenic disorder played a role in the offending, nevertheless the judge, correctly, took into account the traumatic circumstances of Walker's early years and his resultant mental state as relevant to an assessment of his subjective culpability in the present case, in accordance with the principles outlined by the High Court in Bugmy.[20]

70 Further, as the judge accepted, as a result of his mental ill-health, Walker would find a term of imprisonment imposed on him more burdensome than for a normally healthy prisoner.[21]

71 Finally, Walker was also entitled to have taken into account that he had reasonably good prospects of rehabilitation. As noted, Walker pleaded guilty early, and was genuinely remorseful for his wrongdoing. In his letter of apology to the primary victim, he expressed bewilderment as to how he could have become involved in a crime of such seriousness.[22] Before his descent into drug abuse and ill-health, Walker had been a qualified fitter and turner, and had run his own business. He had the capacity to live a useful life upon his release from custody. During his time on remand, Walker had taken genuine steps to rehabilitate, undertaking a number of courses that were directed to enabling him to address his offending, and to reintegrate properly into the community. As the judge found, he had 'ongoing strong family support'.[23]

72 In the case of Dargan, he, too, had a number of mitigating factors which were required to be taken into account in the determination of the sentence to be imposed upon him for armed robbery. As in the case of Walker, the judge accepted that Dargan was genuinely remorseful for his offending, and that he had taken genuine steps while on remand to improve himself.[24] Dargan had a more substantial list of previous convictions than Walker. However, as with Walker, none of Dargan's previous convictions had been for armed robbery, or for offending that was at all commensurate, in terms of its gravity, with the offending in the present case. Apart from two short terms of imprisonment, he had otherwise not received a custodial sentence.

73 As discussed, Dargan's childhood and adolescence had been marked by considerable trauma and dysfunction. He was subjected to severe violence at the hands of his father, and fled the family home for his own safety at the age of 16 years. It is hardly remarkable that, with that background, he turned to illicit drug use, and that he sustained a mental illness of the kind diagnosed by Ms Cidoni.

74 While the judge was not satisfied that Dargan's bipolar disorder was causally connected with his offending in this case, nevertheless his Honour correctly accepted that the principles, stated by the High Court in Bugmy, were relevant to the evaluation of Dargan's subjective culpability for the offending in the case. As mentioned, Dargan's traumatic and turbulent upbringing, and his confusion concerning his Koori identity arising from the overt racism of his father, were directly relevant to a proper assessment of his subjective culpability for the offending in the present case. In essence, the offending was not committed by a person who had had the advantage of a stable and secure upbringing guided by proper parenting. Dargan's attitudes to society, and his anti-social conduct, were necessarily the product of the manner in which he had been raised in his formative years. While those considerations do not excuse his offending, nevertheless, as the judge correctly acknowledged, they were relevant to a fair evaluation of Dargan's moral culpability. Necessarily, Dargan's culpability was at a lower level than if he had had the advantage of a proper and stable upbringing, without being subjected to the dysfunction and violence that he had suffered during his formative years.[25]

75 In addition, as recognised by the judge, Dargan's underlying bipolar disorder will have the effect that a sentence of imprisonment would weigh more heavily on him than on a normally healthy prisoner.[26] That proposition was well supported by the report of Ms Cidoni, who stated:

... he continues to struggle with fluctuating mood states and due to this he would experience some hardship coping in an environment that can be harsh and tense and where his presentation could be misinterpreted by others.

76 Finally, as in the case of Walker, the judge concluded that Dargan had taken genuine steps to put the offending behind him, and that he had strong family support, notably, from his mother, brother and sister.

77 Thus, it is clear that both Walker and Dargan had in their favour a number of important mitigating factors which they were entitled to have weighed in the balance in the determination of the sentence to be imposed on each of them for the charge of armed robbery. Taking those matters into account, and giving full weight to the seriousness of the offence in which each of them engaged, nevertheless it must be concluded that a sentence of 12 years' imprisonment, in respect of the armed robbery committed by each of them, was well outside the range of sentence that would be available to the judge on an appropriate balancing of the relevant factors that were necessary to the exercise of the sentencing discretion in this case.

78 As we have discussed, without any mitigating circumstances, the sentence of 12 years' imprisonment, imposed on each applicant, was, by its very nature, particularly high, given the circumstance that neither applicant had committed a previous offence involving armed robbery, or been engaged in any form of like offending. Of its own, and without more, we would conclude that such a sentence would be manifestly excessive. However, and in addition, the sentence imposed by the judge manifestly does not give any appropriate value or weight to the mitigating factors to which we have referred, and which were not inconsiderable in the case of each applicant.

79 In reaching that conclusion, we emphasise that the offending in this case was serious, and utterly unacceptable. It contravened the basic norms of civilised behaviour in our community. It subjected Mr Dinami, and to the other persons in the shop, to a frighteningly traumatic experience. Nevertheless, those considerations must not be permitted to overwhelm an appropriate balanced exercise of the sentencing discretion. Notwithstanding that the judge, properly, noted each of the relevant mitigating factors, we are well persuaded in this case that his Honour, ultimately, erred in the exercise of his sentencing discretion by imposing a sentence, in respect of each applicant for the offence of armed robbery, that was well outside the range of sentences that were available in respect of the offending in each case.

80 As we have mentioned, counsel for Walker relied on sentences that have been imposed, in respect of the offence of armed robbery, in a number of other cases that have come before this Court, in support of the proposition that the sentence of 12 years' imprisonment imposed on his client was manifestly excessive.

81 Before turning to those cases, it must be borne in mind that so called 'comparable cases' are not to be regarded as precedents, or to be closely analysed for similar and distinguishing features. Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of such cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not mathematical or numerical equivalence of sentences, but, rather, consistency in the application of relevant legal principle. In the context of sentencing, no two cases are alike. The exercise of the sentencing discretion, in each case, necessarily is the product of a balancing of a number of different factors, which can vary considerably between individual cases. Thus, caution must be exercised in referring to previous decisions, in order to determine the 'sentencing range' in any particular case.[27]

82 Further, and importantly, as the High Court recently emphasised in Dalgliesh, while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration in determining the sentence in each case, nevertheless that factor is only one of a number of matters which must be taken into account in the exercise of the sentencing discretion in a particular case.[28]

83 Bearing those caveats in mind, nevertheless a brief review of the sentences, in the cases referred to by counsel for Walker, reinforces the conclusion that we have reached that the sentence of 12 years' imprisonment, imposed on each applicant, was manifestly excessive.

84 In Lord, the applicant had been sentenced, on two charges of armed robbery, to periods of imprisonment of six years and five years respectively. He had pleaded guilty to the second charge, but not guilty to the first charge. The first robbery was committed on a TAB agency after hours. The applicant and the co-offender wore gloves and balaclavas, and were armed. They lay in wait near the entrance of the premises, and seized the female duty manager as she was leaving work. They forced her to re-enter the agency, and to open the safe. Cash amounting to $70,000 was removed from the safe. The second armed robbery was committed in similar circumstances. Again, the applicant and his co-offender lay in wait for a TAB agency to close. They seized the female employee of the premises, and required her to disable the alarm system. In that robbery, $76,000 was stolen from the safe. The applicant had previous convictions for armed robberies. As mentioned, he was sentenced to terms of imprisonment of six years and five years respectively for those offences. Unsurprisingly his application for leave to appeal against sentence was refused. In delivering judgment, Maxwell P and Beach JA noted that there was a serious question of the adequacy of sentencing for armed robbery as demonstrated by comparable cases.[29]

85 In Binse, the applicant was sentenced to 14 years and two months' imprisonment on one charge of armed robbery. He had a very lengthy criminal history of armed robbery and firearm offences and had spent most of his adult life in prison. The armed robbery - which was described by this Court as being in the 'worst category' of such offences[30] - was committed by the applicant and his co-offender using a loaded sawn-off shotgun. It was meticulously planned. It was conducted on two Armaguard security guards who were carrying $235,000 in cash. Quite clearly, the offence in Binse was significantly more objectively serious than the offence committed in the present case.

86 In Johnson, the applicant and his co-offender committed an armed robbery in a McDonald's car park. The applicant pressed a handgun against the head of the female victim and stole her car. In the course of the robbery, his co-offender grabbed and punched the victim's 15 year old daughter. The offenders made threats to kill the victim. The applicant had previous convictions for violence and dishonesty including armed robbery. He was sentenced to 10 years' imprisonment for armed robbery.

87 In Waugh, the applicant pleaded not guilty, but was convicted, on a charge of armed robbery of a manager and two cleaners at a hotel. In the course of the robbery, he wore a jacket with a hood obscuring his face and he brandished a shotgun. The manager was struck over the head and the two cleaners tied up. The applicant stole $41,900 and fled in the manager's vehicle. The applicant had previous convictions for drug offences, and the offence of armed robbery was committed while he was on parole. He was sentenced to eight years and three months' imprisonment for the armed robbery.

88 In Cottee, the applicant was sentenced to seven years and six months' imprisonment, with a non-parole period of five years, for one charge of armed robbery. The applicant and his co-offender had robbed the victim of $55,000 wages which were intended for his employees. Each offender was wearing a full face motor cycle helmet, one had a spanner, and the other had a pipe. They both struck the victim to the head with their weapons. The applicant had a long list of previous convictions.

89 In Stevens, the respondent, having pleaded guilty, was re-sentenced on a Director's appeal to seven years' imprisonment, with a non-parole period of four years and six months, on one charge of armed robbery. He robbed a newsagency while wearing a hoodie and he had a black cloth covering his face. During the robbery he brandished a large kitchen knife. His presentation in the course of the robbery was described as being 'terrifying'.[31] The respondent in the course of the robbery jumped the counter and took between $300 and $400 in cash. He had a lengthy criminal history (with eleven previous Court appearances), and, in particular, he had sixteen previous convictions for armed robbery.

90 In Umi, the applicant was re-sentenced by this Court to six years' imprisonment on one charge of armed robbery to which he had pleaded guilty. The applicant and his co-offender robbed a service station. The applicant was wearing a large hooded jacket with a bandana to cover his face, and was carrying a shotgun. The co-offender had a knife. The applicant aimed the shotgun at the attendant and the knife was used to slash the counter. Threats were uttered and $500 was taken. The applicant had previous convictions for intentionally causing serious injury. On appeal the applicant (who had been sentenced to seven years' imprisonment on the charge of armed robbery) was re-sentenced to a term of six years' imprisonment on that charge.

91 Finally, in Driver, the applicant had used a shortened .22 calibre rifle to rob an ANZ bank of $52,500. He was wearing a stocking and sunglasses to conceal his identity. In the course of the robbery, he told the manager and the teller 'You'll get home tonight if you do what I tell you to do. I'm not going to hurt you'. He pleaded guilty early, and had no previous convictions. He was sentenced to five years and six months' imprisonment on the charge of armed robbery.

92 The foregoing review of the comparable cases, referred to by counsel for Walker, while certainly not decisive, does reinforce the firm conclusion that we have reached that the sentences of armed robbery imposed on each applicant were wholly outside the range of sentences available to the judge. Accepting, as we do, the observation in Lord that sentencing practices in respect of the offence of armed robbery may be inadequate, nevertheless, and taking that observation into account, it is clear that the sentences of 12 years' imprisonment in this case fall well outside what might be described as current sentencing practices as instanced by the cases brought to our attention by counsel for Walker.

93 In determining the appropriate sentence to be imposed on each applicant, it is sufficient to rely, principally, on the matters which we have already discussed, relating to the gravity of the offending, and the mitigating circumstances that were available to each applicant.

94 In essence, for the reasons discussed, the offending in this case was serious. It is necessary that the sentence imposed on each applicant, for the offending, be sufficient to fulfil the sentencing purpose of general deterrence, by demonstrating to other persons, who might be minded to engage in similar activities, that if they were to do so, they will be deprived of their freedom to live in society for a significant period of time. It is also important that the sentences be sufficient to express the condemnation by the Court, and by the community, of the entirely unacceptable nature of the behaviour in which each applicant engaged, and thus to properly denounce their criminal actions. Notwithstanding the commendable steps that have been taken by each applicant on the path to rehabilitation while in custody, nevertheless the sentencing purpose of specific deterrence has work to do in the case of each of them. It is necessary that the sentence that is imposed on them be sufficient to remind them that if, on their release, they were to commit any similar offence again, they would suffer a deprivation of their liberty for a substantial period of years.

95 As we have discussed, there were, in the case of each applicant, substantial mitigating factors which they were entitled to have taken into account in the determination of their sentences. In addition to the matters that were referred to on the plea, as we have just noted, each applicant has taken genuine and constructive steps to rehabilitate, particularly by addressing the central issue that mediated their offending, namely, their addiction to illicit substances, and in particular methylamphetamine. The steps taken by them not only bode well for their prospects of rehabilitation, but also bespeak a genuine insight by them into their offending, and underline the remorse that each has manifested in respect of their conduct. It is noteworthy that Dargan has taken sensible steps to reconnect with his Yorta heritage, and to engage with it, as a pathway to reformation and rehabilitation into the community.

96 Taking those matters into account, we consider that each applicant should be sentenced to a term of eight years and six months' imprisonment, with a non-parole period of six years, on the offence of armed robbery. In addition, Walker should be sentenced to one month's imprisonment on the charge of committing an indictable offence while on bail, such sentence to be served wholly concurrently with the sentence imposed in respect of the armed robbery.

[1] DPP v Walker; DPP v Dargan [2018] VCC 686.

[2] [2007] VSCA 102; (2007) 16 VR 269, 276 [32] ('Verdins').

[12] Binse v The Queen [2016] VSCA 145 ('Binse'); Johnson v The Queen [2011] VSCA 348 ('Johnson'); Waugh v The Queen [2013] VSCA 36; (2013) 38 VR 66 ('Waugh'); Cottee v The Queen [2010] VSCA 285 ('Cottee'); DPP v Stevens [2013] VSCA 187 ('Stevens'); Umi v The Queen [2013] VSCA 211 ('Umi'); Driver v The Queen [2012] VSCA 242 ('Driver').

[13] [2017] HCA 41; (2017) 262 CLR 428 ('Dalgliesh').

[14] [2018] VSCA 52 [9]-[11] ('Lord').

[15] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89].

[16] See, eg, Lieu v The Queen (2016) 263 A Crim R 173, 188-189 [50].

[20] (2013) 249 CLR 571, 594-5 [40]-[44].

[25] Bugmy (2013) 249 CLR 571, 594-5 [40]-[44].

[27] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535-537 [48]-[54]; Hudson v The Queen (2010) 30 VR 610, 617-618 [28]-[33]; Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28, 38 [44]; Russell v The Queen [2011] VSCA 147; (2011) 212 A Crim R 57, 59 [4] (Buchanan JA), 69-70 [56]-[60] (Kaye AJA).

[28] Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [5]-[9] (Kiefel CJ, Bell and Keane JJ), 453-454 [82] (Gageler and Gordon JJ).

[29] Lord [2018] VSCA 52 [9].

[30] Binse [2016] VSCA 145 [51].

[31] Stevens [2013] VSCA 187 [7].