Adam Poidevin v The Queen
[2016] VSCA 165
•18 July 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0110
| ADAM POIDEVIN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 July 2016 |
| DATE OF JUDGMENT: | 18 July 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 165 |
| JUDGMENT APPEALED FROM: | DPP v Poidevin (Unreported, County Court of Victoria, Judge Montgomery, 26 June 2015) |
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CRIMINAL LAW – Leave to appeal against sentence – One count each of armed robbery, threatening to inflict serious injury and theft of a motor vehicle – Whether a total effective sentence of four years’ imprisonment with a non-parole period of two years manifestly excessive – Youth and intellectual disability of Appellant – Risk of institutionalization – Likelihood that Appellant will serve entirety of parole period in custody – Poor prospects of reformation – Substantial criminal history – Sentence not manifestly excessive – Leave application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Kaddeche | Emma Turnbull Lawyers |
| For the Crown | Mr D A Trapnell QC | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
PRIEST JA :
The applicant pleaded guilty, in the County Court at Melbourne, to one charge of armed robbery, one charge of threating to inflict serious injury and one charge of theft. On 26 June 2015, he was sentenced to an aggregate term of 20 months’ imprisonment, to be followed by an 18 month Community Correction Order (‘CCO’).
On 10 May 2016, the applicant admitted to having contravened the CCO through a combination of failing to report as directed, failing to undergo treatment, and failing to attend specified appointments. In addition, the applicant committed a number of serious offences during the operational period of the CCO.
The CCO was cancelled and the applicant was, on this occasion, re-sentenced to an aggregate term of four years’ imprisonment, with a non-parole of two years. A period of 613 days was declared as pre-sentence detention.
The applicant submits that this later sentence, and particularly the aggregate term of four years’ imprisonment, was manifestly excessive. By way of particulars, he relies upon:
· the original sentence imposed by the sentencing judge;
· his personal circumstances, including his age, intellectual disability and difficult upbringing;
· the hardship that he had experienced while in custody; and
· the principle of totality.
For the reasons that follow, we would refuse leave to appeal.
Circumstances surrounding the offending
On 15 June 2013, the applicant, then aged 20, visited a McDonald’s restaurant in Melton. He was accompanied by a friend. As it happened, Calum Holmes and Brendan Curmi, then aged 18 and 19 respectively, were also at that restaurant.
As Holmes and Curmi were leaving, the applicant called out for them to ‘wait up.’ He then demanded their wallets. Holmes handed his wallet over, but Curmi asked the applicant if he was serious. The applicant replied that he was, and lifted his top to reveal a knife. Curmi then handed over his wallet.
The applicant looked through the wallets. They contained no money, and he handed them back. The victims then walked out to the carpark towards Holmes’ car, a 1994 BMW. The applicant then approached them and once again demanded their wallets. He removed several cards from Curmi’s wallet (charge 3 – theft), and then handed the wallet itself back. He stated that he wanted the victims to drive him to an ATM in order for them to withdraw cash for him. In the course of making that demand, he produced the knife and threatened both victims with it.
Holmes was fearful and told the applicant that he should take his car instead. The applicant took the car keys from Holmes. He threatened Holmes that if he went to the police the applicant would arrange for Holmes and his family to be assaulted. At this time, the applicant held the knife close to Holmes’ face and told him that he knew Holmes’ name and address. He added that if Holmes went to the police the applicant would cut him ‘from here to here,’ gesturing from his eyebrow towards his chin (charge 2 - threat to inflict serious injury).
The applicant got into the car, but it would not start. He told Holmes to switch off the immobiliser, which Holmes did. The applicant then drove away (charge 1 – armed robbery).
The victims contacted police. The applicant was soon arrested. When interviewed, he declined to comment.
The applicant, having been first sentenced on 26 June 2015, was released from prison in August of that year. Almost immediately after his release, he committed a number of quite serious offences. These included, for example, obtaining property by deception.
He also faced charges relating to offences committed before he was imprisoned for the McDonald’s offending. These offences included obtaining by deception. In respect of one set of these deception charges, the applicant was sentenced to 83 days’ imprisonment, together with a 12 month CCO (the 83 days being the period that the applicant had served in relation to that particular series of offences prior to having committed the armed robbery and other offences the subject of this application).
Submissions on the 2015 plea
When these charges first came before the County Court there was evidence placed before the sentencing judge to the effect that the applicant had a full scale IQ of 69. Plainly, an IQ of that order posed sentencing difficulties. These included the various matters addressed by the High Court in Muldrock v The Queen.[1]
[1](2011) 244 CLR 120
It was submitted, on behalf of the applicant, that he fell squarely within the principles laid down by this Court in Boulton v The Queen.[2] It was submitted therefore, that a CCO would meet all relevant sentencing needs, being, at the one time, punitive, but also catering for rehabilitation. It was submitted that when regard was had to the length of time that the applicant had already been in custody by that stage, a combined sentence of imprisonment and a CCO would meet the needs of both general and specific deterrence.
[2](2014) 46 VR 308
It was further submitted on behalf of the applicant that he, being still a very young man, faced the risk of being institutionalised if required to serve any further significant period of imprisonment. It was noted that his time in custody had been difficult. There had been conflict with other prisoners, and the applicant had spent a good deal of time in isolation.
The sentencing judge, having given this matter careful consideration, decided that there was scope for some leniency. For that reason he imposed the aggregate sentence of 20 months, and combined it with a CCO. He warned the applicant, however, in the clearest of terms, that any breach of the CCO conditions would have dire consequences for him.
Submissions on the 2016 plea
On this occasion, it was submitted on behalf of the applicant that he had made a number of attempts to comply with the CCO conditions, but had, regrettably, found himself unable to do so. It seems that he had attended regularly for about a month after his release from prison. Thereafter, he no longer did so.
However, it was submitted that this non-compliance should be seen in the context of a young man, with a significant intellectual disability, who had just moved from the country to the city, and was unsettled. He had been unable to find accommodation. He had difficulty in abstaining from alcohol and drug use. He needed disability support, but it was not available. There was a real risk that he would become totally institutionalised if imprisoned for any length of time.
Sentencing remarks 2015
The sentencing judge, in his 2015 sentencing remarks, had characterised the applicant’s offending as ‘very serious’. That was an apt description. His Honour noted that the applicant had already, by that stage, acquired a substantial criminal record. Although he had a low IQ, it was not suggested that he suffered from any mental illness.
The sentencing judge ordered a Department of Justice report in relation to a possible CCO. That report assessed the applicant as being of ‘a high risk of general re-offending.’ Despite that negative conclusion, his Honour decided to be lenient and give the applicant a further opportunity to reintegrate into the community.
Sentencing remarks 2016
On this occasion, his Honour was faced with a particularly difficult sentencing task. Plainly, a CCO was out of the question. There was no alternative but an actual term of imprisonment.
The sentencing judge was once again asked to take into account the applicant’s youth, and the danger that he might become institutionalised. His Honour was also asked to take into account the fact that the applicant had partially complied with the CCO.
His Honour accepted that the applicant had experienced difficulties with other prisoners during his time in custody. However, having previously warned the applicant that he would ‘throw away the key’ if the applicant did not comply with the terms of the CCO, his Honour felt obliged, this time, to impose the sentence that he did.
Analysis
Unquestionably, this is in many ways a sad case. The applicant is a still a young man, and perhaps not beyond hope of redemption. Yet he has many problems, and his prognosis cannot be said to be good.
The applicant comes from a dysfunctional family. His father was extremely violent towards his mother when the applicant was just a boy. His parents divorced when he was aged 12. His mother was, at the relevant time, an alcoholic. He was thrown out of home because of his incorrigible behaviour. He lived on the streets from the age of 13 and was expelled from school at the commencement of year eight. He used cannabis from the age of 14, and methylamphetamine from the age of 19. He also had an alcohol problem.
The applicant had no stable accommodation at the time he committed the offences that are the subject of this application. He appears to have no family support.
All this tends towards trying, as best one can, to assist a young man towards rehabilitation. The difficulty with that course lies in the fact that the applicant’s criminal history can only be described as appalling.
The record compiled by Corrections Victoria shows that over a period of years, he has been convicted of literally hundreds of offences, some of them extremely serious. He has been convicted of numerous dishonesty offences, including theft, and burglary. He also has prior convictions for armed robbery.
The applicant has spent a much of his adult life, such as it has been, in prison. Even after his release from custody in August 2015, he offended repeatedly, it seems on an almost daily basis.
The applicant has had leniency extended to him in the past. For example, he was previously convicted of robbery for which he received a 12 month term of imprisonment (wholly suspended for 18 months). Undeterred, he re-offended almost at once, and was required to serve that entire sentence in custody. He has also previously been granted parole, but has re-offended, and been breached.
The offences for which the applicant was re-sentenced in May 2016 were particularly serious. Armed robbery is always a very serious offence. Here, however, the applicant’s conduct was all the more culpable because of the terror that he inspired in his victims by making the threats that he did.
As indicated, his criminal history, including previous convictions for armed robbery, does not inspire confidence in his future prospects.
It is difficult to see how an aggregate sentence of four years’ imprisonment, with a non-parole period of two years, can be said to be ‘wholly outside the range’ for offending as grave as this. Given his extensive criminal record, the applicant had to be sentenced to a term of imprisonment.
Perhaps the only point with any arguable merit in support of this application lies in the contention that four years was simply too long. Of course it is possible the applicant may have to serve each and every day of that four year term. That is obviously troubling, as the danger of institutionalisation is very real.
Nonetheless, having given this matter anxious consideration, the sentencing judge concluded that he had no option other than to impose a sentence of that duration. In our opinion, that conclusion was reasonably open.
We would accordingly refuse leave to appeal.
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