Aden v The King
[2024] VSCA 21
•6 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0166 |
| HAYYU ADEN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 February 2024 |
| DATE OF JUDGMENT: | 6 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 21 |
| JUDGMENT APPEALED FROM: | [2023] VCC 154 (Judge Dalziel) |
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CRIMINAL LAW – Leave to appeal – Sentence – Application for extension of time – Manifest excess – Whether judge failed to have regard to double punishment – Possession of handgun by prohibited person constituted additional criminality warranting separate punishment – Whether judge failed to give adequate weight to hardship – Submission as to adequate weight not made to sentencing judge – Proposed grounds meritless – Application refused.
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| Counsel | |||
| Applicant: | Mr C Mylonas | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Valos Black & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
BOYCE JA:
On 28 October 2022, the applicant, who is 27 years old,[1] pleaded guilty in the County Court to attempted armed robbery[2] (charge 1), recklessly causing injury[3] (charge 2), prohibited person possessing a firearm[4] (charge 3) and a related summary offence of committing an indictable offence whilst on bail[5] (charge 8).
[1]The applicant was born on 21 August 1996.
[2]Contrary to Crimes Act 1958, ss 75A and 321M.
[3]Contrary to Crimes Act 1958, s 18.
[4]Contrary to Firearms Act 1996, s 5.
[5]Contrary to Bail Act 1977, s 30B.
On 9 February 2023, a judge of the County Court sentenced the applicant as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Attempted armed robbery | 20 years | 3 years and 6 months | Base |
| 2 | Recklessly cause injury | 5 years | 1 year | 6 months |
| 3 | Prohibited person possess firearm | 10 years or 1200 penalty units | 2 years | 9 months |
| Related Summary Offence | ||||
| 8 | Commit indictable offence whilst on bail | 3 months or 30 penalty units | 2 months | 1 month |
| Total Effective Sentence: | 4 years and 10 months | |||
| Non-Parole Period: | 3 years | |||
| Pre-sentence Detention Declared: | 569 days | |||
| Section 6AAA Statement: | Total Effective Sentence: 6 years Non Parole-Period: 4 years | |||
| Other Relevant Orders: 1. Forfeiture order | ||||
In his written case, the applicant sought an extension of time to apply for leave to appeal against sentence on the following proposed grounds:
1.The Learned Judge erred in failing to not double punish the applicant for the possession of the firearm.
2.The Learned Judge erred in placing no weight on the hardship caused to the applicant as he is unable to care for his mother and brother.
3.The Learned Judge erred in imposing a sentence that was manifestly excessive.
At the hearing, the applicant pressed ground 3 (manifest excess) and invited the Court to treat his arguments on grounds 1 and 2 as being particulars of ground 3.
The facts
On 2 October 2020, the victim contacted the applicant via ‘Skout’, a social networking and dating App. The victim was using Skout to facilitate a meeting for casual sex. Between 2 and 4 October 2020, the applicant and the victim exchanged a number of text and photo messages. In these messages the applicant asked if he could go over to the victim’s house for ‘some fun’, being a reference to sex. The victim agreed, sent the applicant his address via text, and invited the applicant over.
Two days later, on 4 October 2020, at approximately 5:00 pm, the applicant arrived at the victim’s home. The applicant had with him a black face mask and was wearing all black clothing and shoes. The victim greeted the applicant at the gate and invited him inside.
The applicant and the victim spoke inside for a brief time before the applicant again asked the victim if he wanted to have some ‘fun’, meaning sexual activity. The victim declined.
The applicant then removed a long-barrelled silver handgun from the waistband of his pants and pointed it at the victim’s head. The applicant said ‘Shut up. Give me all the money.’ This demand was made with the firearm pointed at the victim’s head.
The victim told the applicant that he did not have any money. The applicant used the barrel of the gun to strike the victim across the jaw, causing pain and swelling.
The victim handed the applicant his ‘piggy bank’, containing an unknown amount of cash, and asked the applicant to leave. The applicant told the victim to give him a plastic bag. They walked into the kitchen where the victim picked up a plastic shopping bag and passed it to the applicant. The applicant did not take it, instead telling the victim to place the ‘piggy bank’ into the bag.
As the victim was doing this the applicant picked up the victim’s passport and put it into his pocket. The applicant then demanded the victim’s phone. The victim told the applicant he did not know where his phone was. The applicant asked for it again. He shouted at the victim, pointed the firearm at him, pulled back the hammer on the gun and said ‘I’m going to shoot you in the leg. Give me the phone and tell me the PIN’.
The victim handed the applicant his phone. The applicant held the firearm in one hand and the victim’s phone in the other. He made the victim enter his PIN himself. After unlocking the phone, the applicant demanded the code to the victim’s Commonwealth Bank App. At this point the victim fought back against the applicant.
The victim grabbed hold of the applicant’s hand and used his right shoulder to push him in the chest, knocked him off balance and grabbed hold of the firearm with his other hand. During the struggle that followed, they were both holding onto the gun and the applicant fell over the bench press in the lounge room. The barbell fell off the bench press and landed on top of the applicant, pinning him briefly to the ground.
Still holding onto the gun with his left hand, the victim punched the applicant in the face twice, which made the applicant let go of the gun. The victim got up and tried to run away from the applicant towards the front door of the bungalow. The applicant caught up and grabbed hold of the victim from behind, putting one hand on the top of his head and the other on his jaw.
The victim and the applicant continued to struggle. The victim grabbed hold of the applicant’s hair and managed to get free. In the struggle, the applicant collided with the interior wall near the door, leaving a small bloodstain. The victim again tried to escape the room but could not get outside. The applicant seized the victim around the waist to try to restrain him but the victim managed to fight the applicant off. This struggle caused injuries on the victim’s torso in the form of grazes and scratches.
The applicant and the victim continued to struggle and they both fell through the screen door, knocking it completely out of its track. At this point, the victim was in possession of the firearm. The applicant tried to grab hold of the gun but was unsuccessful. The applicant then grabbed hold of the victim’s t-shirt and pulled it free of his body.
The victim’s landlord came out of her house and saw the applicant fighting with the victim. The victim yelled at his landlord ‘call police, he is robbing me’. She called back that she had called the police.
The applicant then stopped fighting and fled the scene, briefly chased by the victim down the driveway. The applicant did not have any of the victim’s items in his possession, and he left behind his black face mask, shoes, firearm and blood droplets in the driveway.
Police recovered the handgun, which was described as .22 calibre, fully functional but not loaded.
Reasons for sentence
The judge concluded that this was a serious instance of attempted armed robbery. In reaching that conclusion the judge noted that she could not determine whether the applicant had gone to the premises with the intention of robbing the victim or that he formed that intention after he got there and the victim had refused to have sex. The judge said that the demand to the victim that he supply the PIN for his phone and the threat to shoot him in the leg were ‘not part of the armed robbery but proximate to it’.[6]
[6]DPP v Aden [2023] VCC 154, [28] (‘Reasons’).
The judge regarded the injury charge as not a low-level instance, noting that the applicant hit the victim in the face with the gun.[7]
[7]Reasons, [30].
The judge described the firearm offence as ‘not a low level instance’, saying that the firearm was capable of being discharged, he had it with him and not stored away.[8] The judge did not regard the applicant’s reason for possessing the gun, namely that he was fearful of being attacked, as mitigating the offence.[9]
[8]Ibid [31].
[9]Ibid, [31].
The judge set out the applicant’s personal circumstances.[10] He was 26 years old, his family, who had fled war torn Ethiopia were supportive, hard-working and quite strict. The applicant completed Year 12 and started a civil engineering course at RMIT. He transferred to a business course but did not complete it.
[10]Ibid [32]–[44].
The applicant has a history of drug use.[11] Medical evidence tendered on the plea recorded symptoms consistent with post-traumatic stress disorder, including hypervigilance, paranoia, anxiety, low mood, negative perceptions of himself, and a sense of unease.[12] Psychologist Laura Fleming considered that the applicant met the criteria for stimulant use disorder, cannabis use disorder, and post-traumatic stress disorder related to events when the applicant was seven to nine years old.[13] Ms Fleming also said that this traumatic experience pushed the applicant away from the otherwise-healthy home environment provided by his parents, compromised his emotional development, and contributed to a pattern of instability, self-isolation, maladjustment and emotional disturbance.[14] The judge accepted that prison would probably weigh more heavily on the applicant than on a person who did not have his mental health issues.[15]
[11]Ibid [45]–[47].
[12]Ibid [48].
[13]Ibid [50].
[14]Ibid [51].
[15]Ibid [70].
The judge noted that the applicant had a criminal history dating from 2018 which included charges of attempted robbery in 2020 for which the applicant received a term of imprisonment of 110 days.[16] The judge took into account the applicant’s guilty plea, accepted that the applicant was remorseful and had some prospects of rehabilitation. In that respect the judge said:
You have skills, and the desire to help others. You have your family support, and connections in your community who value you and your contribution. If you address the underlying causes of your drug abuse, and are able to progress in your rehabilitation in respect to drugs, you have real capacity to be a valuable member of the community.[17]
[16]Ibid [55]–[58].
[17]Ibid [77].
The parties’ submissions
Extension of time
The applicant seeks an extension of time to file his notice of application for leave to appeal against sentence, on the basis that the delay was caused by a lack of funding to commence the appeal process and a delay by counsel in preparing the grounds of appeal and the written case.
The respondent accepts that the reasons for delay appear reasonable in nature and are sufficiently explained, but opposes the application for an extension of time on the basis that the proposed grounds of appeal are not reasonably arguable.
Ground 3 — manifest excess
The applicant submits that in sentencing the judge did not give sufficient weight to the applicant’s relative youth (24 years old at the time of offending and 26 at the time of sentence) and the importance of rehabilitation. The respondent submits that, although not expressly stated in the Reasons, when the Reasons are read together with the plea transcript it is clear that the judge took the applicant’s age into account when considering rehabilitation.
The applicant submits that the judge erred in her characterisation of the objective gravity of the recklessly causing injury offending. The judge characterised this as ‘not a low level instance of the offence’, given the applicant ‘hit the victim in the face with the handgun’ although the injuries were ‘not long lasting or significant’.[18] The respondent submits that the offence encompassed both striking the victim in the face with the handgun and the subsequent struggle, during which the victim sustained grazes and scratches to his torso. The respondent submits that all of these events occurred inside the victim’s house where he was entitled to feel safe, and that the applicant could have desisted and left at any time but instead continued the altercation, during which he caused injuries.
[18]Ibid [30].
The applicant also submits that the judge failed to take note of the absence of victim impact statements tendered on the plea as evidence of lowered offence gravity. The respondent submits that a failure to produce a victim impact statement cannot detract from the gravity of the offending, and the court cannot engage in speculation about whether the victim’s position may have changed following an apology by the applicant.
Finally, the applicant submits that the judge failed to consider the delay of 569 days until sentence, which the applicant contends is unduly long and was covered substantially by the period of COVID-19 restrictions. The respondent submits that this is not unduly long and was largely due to the applicant initially pleading not guilty and running a contested committal.
The respondent submits that the individual sentences, the orders for cumulation and the total effective sentence were within range, taking into account the objective gravity of the offending; the applicant being on a Community Correction Order at the time; the plea being entered at a late stage; and the applicant having previously been convicted of relevant offences including attempted robbery, possessing a prohibited weapon and possessing a dangerous article.
Double punishment
The applicant submits that when an offender is sentenced for offending that is aggravated by using a firearm and for being a prohibited person possessing a firearm, the sentence for the possession charge cannot include any penalty for the use or possession of the weapon that aggravated the first offending without moderating the sentences to account for double punishment.[19]
[19]Citing Berichon v The Queen (2013) 40 VR 490, 496–7 [27]–[30] (Redlich JA), 511–13 [129]–[142] (Robson AJA); [2013] VSCA 319; Armistead v The Queen [2011] VSCA 84, [11]–[12] (Redlich JA); Kruzenga v The Queen [2014] VSCA 10, [12]–[21] (Weinberg JA); Saner v The Queen [2014] VSCA 134, [118]–[123] (Tate JA); Murrell v The Queen [2014] VSCA 337, [28]–[31] (Priest JA).
The applicant submits that the judge failed to avoid double punishment. The applicant bases this submission on the judge’s finding that the possession charge was not a low-level offence and that the handgun was capable of being discharged had it been loaded;[20] the failure to document in the Reasons that the sentence for the possession charge was being moderated to avoid double punishment; and the imposition of a sentence of 2 years’ imprisonment with cumulation of 9 months for the possession charge.
[20]Reasons, [31].
The applicant submits that both charge 1 (attempted armed robbery) and charge 2 (recklessly cause injury) were aggravated by the use of the firearm, meaning there existed a risk of triple punishment. The applicant does not say a degree of cumulation was not warranted but takes issue with the quantum.
The respondent submits that separate consideration was given to the objective gravity of each offence and that the use of the firearm to commit charges 1 and 2 did not factor into an assessment of the objective gravity of charge 3. The judge considered that it was not possible to make a finding about whether the applicant went to the victim’s house solely to commit an armed robbery.[21] The respondent submits that bringing the handgun to the victim’s house was not treated as an aggravated feature of the attempted armed robbery, meaning it was open to impose a sentence on charge 3 for the act of carrying the handgun to the victim’s house.
[21]Ibid [28].
The respondent submits that, in light of the gravity of the possession offending, the sentence and cumulation imposed is within sound discretionary judgment.
Hardship
The applicant submits that the judge did not consider the hardship that would be caused by him being unable to care for his mother and brother while in prison, which would make his experience of prison more burdensome.[22]
[22]Citing Markovic v The Queen (2010) 30 VR 589, 595 [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA); [2010] VSCA 105.
The respondent submits that the alleged error is not supported by recourse to the Reasons, citing the following statement by the judge: ‘I accept that you will be concerned for your brother and mother, in particular, whilst you are in custody, and are regretful that you cannot be there to help your family’.[23]
[23]Reasons, [73].
Decision
The applicant applied for an extension of time to file his application for leave to appeal on 21 September 2023, more than 6 months after he was sentenced. The applicant therefore requires an extension of time to be able to file his application for leave to appeal against sentence.[24] In considering whether to exercise its discretion to grant an extension of time, the Court may have regard to, among other considerations, the length and reasons for the delay, and the applicant’s prospects of success should the extension of time be granted.[25] Even if there is a satisfactory explanation for a delay, it might not justify an extension where the merits of the proposed appeal are very poor.[26]
[24]Criminal Procedure Act 2009, ss 279(1) and 313(1).
[25]Madafferi v The Queen [2017] VSCA 302, [11].
[26]Jopar v The Queen (2013) 44 VR 695, 707 [60] (Priest JA).
In order to succeed on his contention that the sentence, and its constituent parts, are manifestly excessive, the applicant would need to demonstrate that the sentence was wholly outside the range available to the judge in the sound exercise of her discretion. That is not an easy task.
It is convenient to commence by reference to the attempted armed robbery.
The offending captured by that charge was self-evidently serious. The use of a functioning handgun to effect the robbery was very serious. The gun was pointed to the victim’s head. A little later it was pointed to his leg and the applicant again threatened to shoot. The judge observed that the threat to shoot the victim in the leg was proximate to, but not part of, the armed robbery. This was perhaps overly generous given the attempted robbery was ongoing but, in any event, it lengthened the trauma and showed continuing hostility to the victim. The absence of a victim impact statement does not detract from the seriousness of the offending.
It would have been terrifying for the victim, who was in his own home and had invited the applicant inside. Although an attempt, it was very advanced; it was only prevented from completion by the acts of the victim.
The judge did not make a finding that the robbery was planned by the applicant. Premeditation may have made the offending worse but, even if it were spontaneous, it was still serious.
The applicant has numerous prior findings of guilt, including for possession of prohibited and controlled weapons and attempted robbery.
The judge carefully considered the applicant’s personal circumstances, including his compromised mental health. Having regard to the sentence imposed, the judge must have given these matters considerable weight. Giving full allowance for the plea of guilty and the other factors relied on, the sentence of 3 years and 6 months for charge 1 was well open to the judge and unremarkable.
The possession of the handgun by the applicant, who was a prohibited person, constituted additional criminality that warranted separate punishment. Given that the judge made no finding that the robbery was premeditated, his possession up until the time he arrived at the house could not have been captured by the sentence on the robbery charge and, for that reason alone, there was no double punishment. Bringing the handgun to the victim’s house was not treated as an aggravating feature of the attempted armed robbery. We accept the respondent’s submission that, in sentencing for this charge, her Honour was required to ‘give distinct recognition to the applicant’s status as a prohibited person.’[27]
[27]McMillan v The Queen [2020] VSCA 189, [28].
Finally, the injury charge was nasty. Using the barrel of the gun to strike the victim’s face was brutish and added to the menace posed by the applicant.
There is no merit in the complaint that the sentence does not give adequate weight to the hardship on the applicant because he is unable to care for family members. The submission was not made to the sentencing judge, and that alone is reason to reject it. In any event, as the respondent submits, the judge did take into account the applicant’s feelings of regret.
There is also no merit in the applicant’s submission that the sentencing judge failed to consider the delay of 569 days until sentence. As the respondent contends, a significant amount of that delay can be explained by the applicant’s decision initially to plead not guilty and to run a contested committal.
Given the grounds of the applicant’s proposed application for leave to appeal against sentence lack merit, and any order to grant an extension of time would therefore lack utility, the application for an extension of time is refused.
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