Arrowsmith v DPP
[2010] VSCA 359
•29 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| No S APCR 2009 0941 |
| LUKE JAMES ARROWSMITH |
| v |
| DIRECTOR OF PUBLIC PROSECUTIONS |
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JUDGES: | WARREN CJ, BUCHANAN and REDLICH JJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 29 October 2010 | ||
DATE OF JUDGMENT: | 29 October 2010 | ||
MEDIUM NEUTRAL CITATION: | [2010] VSCA 359 | ||
JUDGMENT APPEALED FROM: | R v Luke Arrowsmith (Unreported, County Court of Victoria, Judge Morrish, 19 October 2009) | ||
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CRIMINAL LAW – Appeal – Sentence – Appellant pleaded guilty to one count of armed robbery – low level offence – appellant’s moral culpability reduced by reason of mental impairment – extensive previous convictions – sentenced to four years’ imprisonment, three years’ non-parole period – respondent conceded error in exercise of sentencing discretion – appellant re-sentenced to two years’ imprisonment, eighteen months’ non-parole period – Appeal decision without precedent value.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Boyce | Mr R V Tait |
| For the Respondent | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
On 12 February 2009, a few minutes after 5.00 pm, the appellant boarded a stationary bus at the La Trobe University (Bundoora campus) bus terminal. There was only one male passenger on board the bus at the time; its driver was taking a break some distance away. The appellant approached this passenger, who was shortly to become the victim of the armed robbery giving rise to this appeal, and asked him where the bus was going. He then forcefully and aggressively grabbed the mobile phone which the victim was using. The victim tried to recover his phone before the appellant also unsuccessfully tried to take his laptop bag which was sitting on the seat next to him.
The appellant then asked his victim for money with which to catch the tram. His victim asked the appellant whether five dollars was enough, but the appellant responded that it was not and tried to take his wallet. The victim held onto his wallet with both hands, before the appellant took a folding knife out of his pocket, and holding the knife down by his side without opening it, demanded money, stating that he wanted one or two hundred dollars. The victim then gave him fifty dollars and showed the appellant the inside of his wallet to indicate that he did not have any more money.
At this point, the bus driver boarded the bus. The appellant put the knife back into his pocket, thanked his victim and then gave him a hug. The bus driver told the appellant to get off the bus and he did so, before going to a McDonald's restaurant and spending part of the money he had taken from his victim. The victim then told the bus driver what had happened.
The appellant was apprehended after the police reviewed video footage related to the incident and executed a search warrant of his home. During that search, they found the knife used during the armed robbery, money and the clothing worn by the appellant during the commission of the offence.
When interviewed by the police, the appellant denied taking the victim's mobile phone, trying to take his laptop bag, and denied committing the armed robbery. The appellant claimed his victim had willingly given him the money in question
Whilst the victim stated in his depositions that he was worried at the time the offence was committed, and believed that if he had not complied with the appellant's demand for money he would have been assaulted either with or without the knife, he declined to make a victim impact statement.
The appellant was born on 25 October 1983. At the time of the offending he was 25 years old. At that time he was also on bail, which had been entered on 10 February 2009. The offending occurred during the operational period of a partially suspended sentence imposed on 9 July 2008 at the Broadmeadows Magistrates' Court. On that occasion, the appellant received 12 months' imprisonment with six months suspended for 12 months in relation to three counts of burglary, three counts of theft, two counts of obtaining a drug prescription using a false representation, and three counts of possessing a drug of dependence, namely cannabis.
The appellant's parents separated when he was four. Upon that separation, he went to live with his mother who then began a relationship with a man who was physically violent towards both her and the appellant. At the age of six, the appellant went to live with his father whose employment commitments resulted in the appellant being largely unsupervised.
At this stage, the appellant's older brother, who was then thirteen, began to assume a carer role over him. The appellant appears to have left school in about Year 8 and to have only been sporadically employed since then in unskilled labour. For a period of about three or four years prior to his sentencing to this offence, the appellant does not appear to have been employed. However, prior to being remanded in custody, the appellant participated in a vocational program where he worked in a bakery, and had undertaken some courses aimed at personal development.
The appellant followed his older brother into experimenting with cannabis and alcohol at the age of 14, progressed to heroin by the age of 16, and began to use that drug intravenously at the age of 17. Whilst the appellant successfully completed a detoxification program, at the time of the offending, he continued to take 65 milligrams of methadone each day and to abuse prescription medication. The appellant also commenced taking benzodiazepines at the age of 19, and they appear to have impaired his ability to recall his own behaviour.
The appellant has also suffered physical injuries, including possible brain damage, from an assault in 2000 and a motor vehicle accident in 2001.
The appellant was described in evidence accepted by the sentencing judge as an intellectually impaired individual prone to poor judgment, particularly when under the influence of drugs. These two conditions, the appellant's borderline intellectual functioning and his prescription drug dependence, were found by a forensic psychologist who assessed him, to sustain one another to some extent.
At the time of sentencing the appellant was found to have intellectual abilities in the extremely low range. He was assessed as having a verbal IQ at 60, a performance IQ at 57 and a full scale IQ at 54. The appellant was assessed as essentially incompetent when it came to problem solving and decision-making. The specialist who prepared a neuropsychological assessment report in respect of him concluded that he had a marked difficulty in seeing the outcomes of actions and poor capacity to recognise what was unreasonable.
The cognitive difficulties identified in this neuropsychological assessment resulted in the sentencing judge accepting that the appellant's mental functioning was severely compromised at the time of his offending and that applying the principles established in R v Verdins,[1] his moral culpability for that offence was correspondingly reduced.
[1](2007) VR 269 [26].
It is significant to note that the extent of the appellant's intellectual disabilities was only diagnosed and properly identified in his teenage years once he had entered the juvenile justice system.
The appellant was, and still is, in a positive, supportive de facto relationship with a slightly older woman who continues to support him in custody and with whom he plans on cohabiting upon his release. At the time of his offending, he also had support from a counsellor and the Department of Human Services. However, her Honour assessed the appellant as having limited prospects for rehabilitation by reason of his condition.
The appellant had 113 previous dispositions and convictions arising out of 29 separate appearances in court between 5 November 1999 and 9 July 2008. Two of these convictions were for armed robberies and one was for an attempted armed robbery, in all of which offences the appellant used a knife. These offences appear to have involved a single course of conduct during which the appellant was in the company of two other men, one of whom was significantly older than him.
Finally, the appellant does not appear to have posed any difficulties whilst in prison and appears to have continued to take his prescribed medication.
The appellant indicated his intention to plead guilty at the earliest opportunity despite having little recollection of the events in question. After entering a plea of guilty, he was convicted of one count of armed robbery. The subject matter of that charge consisted solely of the offence as described. On 4 December 2009, the appellant was sentenced to four years of imprisonment with a non-parole period of three years. Her Honour declared, pursuant to s 6AAA of the Sentencing Act1991 (Vic) that, but for the appellant's plea of guilty, she would have imposed a sentence of six years' imprisonment with a non-parole period of four and one half years.
Leave having been granted, the appellant now appeals the sentence on the grounds that it was: (a) manifestly excessive; (b) the learned sentencing judge erred in finding that the offence was in the mid-range of seriousness for offences of this type; (c) the learned sentencing judge erred in failing to place sufficient weight upon the appellant's intellectual disability, in particular, her Honour erred in finding that this disability only moderately reduced the appellant's moral culpability for the commission of the offence; and (d) the learned sentencing judge erred in placing too much weight upon the need to protect the community when sentencing the appellant.
The respondent has conceded that the appeal against sentence should be allowed and that the appellant should be resentenced to a different sentence. For this reason, this appeal has been expedited. The respondent has conceded that the sentence was excessive, insofar as the appellant should have received a sentence between the most common sentence, three years, and the median sentence, two years, imposed for such offences, instead of which he received double the most common sentence and one year in excess of the median sentence. The respondent has also conceded that the offence fell towards the lower end of the scale of such offending and that specific error has been demonstrated in the learned judge's categorisation of the offence as in the mid-range of seriousness for the following reasons: (a) the weapon produced was a folding knife, and that knife remained closed during the commission of the offence; (b) the weapon was not brandished, but was instead held down by the side of the offender; (c) no gratuitous violence was used during the commission of the offence; (d) the sum of money stolen was only fifty dollars; (e) the offence was not planned and did not involve the use of a disguise; (f) the offence was committed alone, in public, and in circumstances where it was almost inevitable that he appellant would be apprehended; and (g) whilst the victim was clearly frightened, the appellant thanked him and hugged him after the commission of the offence.
The respondent has also conceded that the learned judge fell into error in failing to place sufficient weight upon the appellant's impaired mental functioning. In particular, the respondent concedes that the judge's finding that such mental impairment only moderately reduced the appellant's moral culpability was inconsistent with her Honour's finding that the appellant's mental functioning was severely compromised. Furthermore, the respondent conceded that the very circumstances of the offending, and the appellant's description of it following his arrest, suggested an inability on his part to understand the wrongfulness of his behaviour. The respondent concedes that rather than being ‘moderately reduced’, the appellant's moral culpability was ‘significantly reduced’.
Finally, the respondent also appears to concede, properly in my opinion, that the learned judge erred by imposing a sentence incorporating a period of preventative detention, and thereby fell foul of the principle of proportionality.[2]
[2]Veen (No. 2) v The Queen (1987) 164 CLR 465, 473 (Mason CJ, Brennan, Dawson and Toohey JJ).. The principle expressed therein has been adopted in all Australian jurisdictions. See, Chester v R (1988) 165 CLR 611; R v Roadley (1990) 51 A Crim R 336; R v Crowley & Garner (1991) 55 A Crim R 201; R v Taylor (1992) 58 A Crim R 337; R v Denyer [1995] 1 VR 186.
In the circumstances of this case, I am persuaded and accept the submissions of the respondent. In my view, the appeal should be allowed. This case is unusual, and Mr Sonnet, appearing for the respondent, directed our attention to earlier decisions of this Court in the matters of Sharkey v R[3] and R v McIntosh[4]. These cases are of assistance to the Court when deciding upon the appropriate terms of the sentence to be imposed in this matter in all the circumstances.
[3][2010] VSCA 273 (Unreported, Court of Appeal of the Supreme Court of Victoria, Ashley and Weinberg JJA, 20 October 2010)..
[4][2008] VSCA 242 (Unreported, Court of Appeal of the Supreme Court of Victoria, Kellam, Dodds-Streeton JJA and Hargrave AJA, 5 December 2008)..
Whilst the matters of specific and general deterrence are, of course, relevant in a case such as this, in all the circumstances, given the period of imprisonment that the appellant has already served, in my view, the appeal should be allowed, and the appellant should be resentenced on the count of armed robbery to a term of two years' imprisonment. I would fix a non-parole period of one year and six months.
In relation to the period for parole, I note that it was conceded for the respondent that, in the circumstances it was appropriate for a non-parole period to be fixed. In the course of submissions, Mr Boyce, counsel for the appellant, urged the Court to assist his client by nominating a non-parole period and submitted that such a period was desirable in the circumstances of the appellant. In the unusual circumstances of this case, I would, as I have already indicated, impose the non-parole and parole period set out above.
BUCHANAN JA:
I agree.
REDLICH JA:
I also agree.
WARREN CJ:
The Court will orders as follows:
1. The appeal is allowed.
2. The sentence of imprisonment imposed below is quashed. In lieu, thereof, the appellant is sentenced as follows:
Count 1 - two years' imprisonment.
The Court will fix a non-parole period of one year and six months.
The Court will declare a pre-sentence detention period of 623 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
All other ancillary orders are confirmed.
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