Ashley Gerbing v The Queen
[2015] VSCA 209
•12 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0080
| ASHLEY GERBING | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2015 0087
| BRADLEY ROBERT CROUGHAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 August 2015 |
| DATE OF JUDGMENT: | 12 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 209 |
| JUDGMENT APPEALED FROM: | DPP v Croughan (Unreported, County Court of Victoria, Judge Jordan, 30 March 2015) |
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CRIMINAL LAW – Sentence – Applications for leave to appeal – Applicants charged with robbery and armed robbery respectively – Complainant an 18 year old school girl waiting for her bus – Soft target – Applicants with prior criminal histories – General deterrence – Specific deterrence – Application of Verdins principles in respect of one applicant – Totality considerations in respect of other applicant – Not reasonably arguable that robbery sentence of 18 months with non-parole period of 12 months was excessive – Not reasonably arguable that armed robbery sentence of 4 years and 6 months with non-parole period of 3 years was excessive – Errors contended for by applicants not reasonably arguable – Applications for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant, Mr Gerbing | Mr J E McLoughlin | Victoria Legal Aid |
| For the Applicant, Mr Croughan | Mr D N McGlone | Melinda Walker Lawyer |
| For the Respondent | Mr R L Gibson | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WHELAN JA:
I agree with Beach JA.
BEACH JA:
Introduction
On 30 May 2013, the applicants, Ashley Gerbing and Bradley Robert Croughan, robbed a schoolgirl who was waiting for a bus to take her to school. On 20 February 2015, Croughan was found guilty by a jury of one charge of armed robbery. He pleaded guilty to the related charge of theft. On 23 March 2015, Gerbing pleaded guilty to a charge of robbery. Following a plea hearing on 23 March 2015, the applicants were sentenced, on 30 March 2015, as follows:
Applicant Gerbing Charge on Indictment Offence Maximum Sentence Cumulation 1 Robbery
[Crimes Act 1958 s 75(1)]
15 years
[Crimes Act 1958 s 75(2)]18 months N/A Total Effective Sentence: 18 months Non-Parole Period: 12 months Pre-sentence Detention Declared: 7 days 6AAA Statement: 2 years 6 months with a non-parole period of 18 months Other orders: Forensic sample order, $450 compensation order
Applicant Croughan Charge on Indictment Offence Maximum Sentence Cumulation 1 Armed robbery [Crimes Act 1958 s 75A(1)] 25 years
[Crimes Act 1958 s 75A(2)]4 years 6 months Concurrent 2 Theft
[Crimes Act 1958 s 74(1)]
10 years
[Crimes Act 1958 s 74(1)]4 years 6 months Concurrent Total Effective Sentence: 4 years 6 months Non-Parole Period: 3 years Pre-sentence Detention Declared: 143 days 6AAA Statement: N/A Other orders: $450 compensation order
Gerbing now seeks leave to appeal against his sentence on the following grounds:
1.The sentencing judge erred in holding that deterrence is the dominant purpose of sentencing for robbery offences.
2.The sentencing judge erred in approaching sentencing on the basis that rehabilitation could only displace deterrence as the dominant purpose of sentencing if the applicant’s prospects of rehabilitation were ‘compelling’.
3.The sentencing judge erred in failing to consider whether the protection of the community would be best achieved by encouraging the applicant’s rehabilitation.
4.The sentencing judge erred in finding that the applicant’s prospects of rehabilitation were ‘guarded’.
5.The sentencing judge imposed a sentence which was manifestly excessive because of the matters set out in grounds 1 to 4.[1]
[1]While Gerbing’s application for leave to appeal only contained grounds 1 to 4, on the hearing he sought to argue manifest excess caused by the errors alleged in those grounds. As the issue of manifest excess had been argued in his written case, at the hearing we gave him leave to add ground 5.
Croughan now seeks leave to appeal against his sentence on the following grounds:
1. The sentence imposed is manifestly excessive.
2.The sentencing judge erred by failing to have sufficient regard to Verdins[2] principles in light of the applicant’s impaired mental functioning.
3.The sentencing judge erred by failing to have sufficient regard to the principle of totality.
[2]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Circumstances of the offending
At 6:30am on Thursday 30 May 2013, the 18 year old complainant was waiting at a bus stop on Monterey Boulevard, near her home in Frankston, for her bus to school.
The applicants walked up behind the complainant. Croughan grabbed the complainant by her wrists, dragged her arms behind her back and held them there. Gerbing took the complainant’s schoolbag and handbag and ran down the street carrying both bags.
While still holding the complainant’s arms behind her back, Croughan showed her a knife and threatened her with it saying, ‘If you call police we will kill you because we know that you catch the bus every morning’. Croughan then pushed the complainant to the ground, told her not to follow him, and ran after Gerbing.
The complainant described the knife as being about 30cm in length. Gerbing did not know that Croughan was armed with a knife or that he intended on using it to threaten their victim.
The applicants met up further along the street, Gerbing handed Croughan the handbag but kept possession of the schoolbag.
Bravely, and no doubt unexpectedly so far as the applicants were concerned, the complainant pursued the applicants for the next hour and a half trying to recover her stolen bags. In the course of pursuing them, she managed to recover several of her possessions that they had thrown away. Eventually she gave up and called the police.
Ultimately, the complainant’s school bag and most of its contents were returned to her. She did not get back her handbag, her yellow leather wallet which contained $450 in cash, two mobile phones, and some other personal items.
The applicants ran to the house of one Georgie Bounds, whom Croughan had known for two or three years. Croughan introduced Gerbing to Ms Bounds and told her that Gerbing had picked up a bag that was by itself near a bus stop and that they had been chased. By that stage the police were present outside Ms Bounds’ home so the applicants stayed inside until they left.
Between 9:30 and 10:00am one Diana Fitzpatrick, a friend of Ms Bounds’, arrived at the house. She also knew Croughan, who introduced her to Gerbing. Croughan asked Ms Fitzpatrick if he could swap jackets with her ‘in case somebody recognised him’. He gave Ms Fitzpatrick the jacket he was wearing and in return she lent him a white hooded jumper.
Subsequently, Croughan was interviewed by police on 4 June 2013. He told police that at about 8:30am on 30 May 2013 he was walking down Monterey Street with Gerbing when they found a handbag and a schoolbag sitting at the bus stop. The picked up the bags and then a girl said ‘Hey’ and he dropped the schoolbag. Gerbing then went to visit his friend Ms Bounds.
Gerbing was interviewed by police on 3 December 2013, he stated that at 6:00am on 30 May 2013 he was in Frankston North visiting Croughan. They were walking down Monterey Boulevard when Croughan found a bag in the bushes and picked it up. He heard a girl scream and both he and Croughan ran in opposite directions, meeting up again at Croughan’s friend’s house.
Gerbing’s background
At the time of sentencing, Gerbing was 28 years of age. He was unemployed at the time of this offending, and had at times been an illicit drug user. He had prior convictions for offences of dishonesty and violence going back to 2006. In September 2006, he received a community based order for the offence of recklessly causing injury. He failed to comply with that order and was subsequently sentenced for that failure, and another charge of recklessly causing injury, to a wholly suspended term of imprisonment of one month.
Moving forward in time, in 2012, Gerbing received a community correction order for a number of offences, including theft and unlawful assault. This order was breached when Gerbing (together with Croughan) robbed the complainant. Additionally, Gerbing committed six other offences while on the 2012 community correction order. For these subsequent offences, Gerbing received a further community correction order in June 2014.
At the plea hearing, letters from Gerbing’s mother, grandmother and partner were tendered. The substance of these letters was that Gerbing had only commenced to get into trouble when he became involved with drugs, after his father died when Gerbing was 19 years of age; and that he had turned his life around in the 20 months leading up to the plea hearing. Additionally, an unsigned letter dated 19 March 2015, addressed ‘To whom it may concern’, on the letterhead of InstallEx was tendered. This letter stated that Gerbing had been employed by InsallEx as an exhibitions labourer since February 2014. On the plea it was said that this was casual employment.
Croughan’s background
Croughan was 29 years of age at the time of sentencing. He has a full scale IQ of 62, placing him in the extremely low range for intellectual functioning. Additionally, Croughan’s exposure to drugs and alcohol have added to his intellectual disability.
That said, Croughan’s criminal history is extensive. He has many prior convictions for violence and dishonesty offences spanning the whole of his adult life. Like Gerbing, he has been sentenced to a community based order in the past and breached that order. He has also been sentenced to suspended and partially suspended terms of imprisonment. Of some significance is the fact that the present offending was committed only 22 days after Croughan was released from prison for earlier offending. Additionally, Croughan has also been involved in serious subsequent offending, including a stabbing offence that occurred in October 2013.
The judge’s reasons
In sentencing Croughan, the judge accepted that the principles in Verdins applied.[3] The judge considered that Croughan’s impaired mental functioning and limited IQ reduced his moral culpability, was relevant to the question of specific deterrence; and could mean that incarceration would be more difficult for Croughan than a person of normal mental health.[4] Additionally, the judge concluded that there was ‘a realistic connection’ between Croughan’s mental condition and his offending. The judge also said that this was relevant to general deterrence, in that Croughan was a ‘less appropriate example for the community in that context than some other offenders’.[5]
[3]DPP v Croughan (Unreported, County Court of Victoria, Judge Jordan, 30 March 2015) [38] (‘Reasons’).
[4]Ibid [39]–[40].
[5]Ibid [41].
In view of Croughan’s bad previous criminal record and the many dispositions in which it could be said that leniency had been shown to him, the judge concluded that a community correction order was not an appropriate disposition, even accompanied by an immediate term of imprisonment.[6]
[6]Ibid [44].
The judge expressly referred to s 5(4C) of the Sentencing Act 1991, before concluding that, in view of the seriousness of Croughan’s offending and his prior criminal history, there was no alternative in his case but to impose a sentence of imprisonment with a non-parole period without a community correction order.[7]
[7]Ibid [45].
Next, the judge turned to Gerbing. The judge noted that Gerbing’s offending occurred while he was on a community correction order and that there were six other offences committed during the currency of that order.[8]
[8]Ibid [49]–[51].
The judge then noted that Gerbing had been shown leniency in the past with suspended sentences and community based orders.[9] The judge then dealt with Gerbing’s personal circumstances, before saying:
[9]Ibid [52].
As well as the matters personal to you, I must take into account other relevant sentencing considerations. General and specific deterrence must be given weight in the sentence. No professional reports have been tendered on your behalf by way of analysis of your psychological or psychiatric condition and your current drug usage.
It has been said in an offence such as yours that the community cannot and will not tolerate offending which so seriously compromises a schoolgirl's right to feel safe, sitting alone at a suburban bus stop waiting to go to school, nor will it tolerate offending that can have some consequences for such a victim. The message must be clear and consistent that severe punishment will result, given the circumstances of your offending. Your sentence must manifest the community's denunciation of your conduct and impose just punishment. I must protect the community from any repetition of this type of offending and consider deterrence to both you and the general community.
Defence counsel's submission that a community corrections order without imprisonment is the appropriate disposition calls for a closer look at your criminal record. You received a community based order in 2006 at 20 years of age for violent offending. You failed to comply with it and received a term of imprisonment wholly suspended at age 21. You were given a further wholly suspended sentence in 2010. You failed to comply with that order. You were given a community corrections order in 2012 for dishonesty and violence offences that you breached with this robbery. It is admitted you also breached it with six other offences. For these, you have received a further community corrections order in June 2014.
The appropriateness of another community corrections order for this serious violent offence on a defenceless young woman needs to be looked at carefully. The thrust of the submission was directed to rehabilitation and progress you have said to have achieved more recently in your life and your personal circumstances.
Sentencing purposes for robbery require the goals of deterrence and community protection of women alone in the street to have particular force. It has been said general deterrence is the dominant purpose emphasised in robbery offences. Your rehabilitation is of course relevant but in these circumstances it ought to be subordinated to the requirements of deterrence and community protection. Your rehabilitation prospects are guarded in my view and are not so compelling that they displace deterrence as the dominant purpose of sentencing.
I have considered the matters raised by your counsel and the purposes of sentencing. Those purposes include the need to deter others from further offending of this type, preying as it does on a young female out on her own. I have considered all the circumstances of the offence and of the offender in arriving at the appropriate sentence. I have considered s 5(4C) of the Sentencing Act 1991. I do not consider the sentencing purposes can be achieved by anything other than an immediate custodial sentence.
The offence is serious. You were on a community corrections order with conditions when you offended. I have been referred to the principles in the case of Boulton v The Queen[10] and I have considered those principles and the guidelines helpfully set out. I do not accept that the purposes of sentencing can be achieved by giving you another CCO for this offending.[11]
[10][2014] VSCA 342 (‘Boulton’).
[11]Reasons [58]–[64].
It should immediately be noted that the complaint Gerbing makes about the judge saying that ‘[i]t has been said general deterrence is the dominant purpose emphasised in robbery offences’, is not of the significance that it might have been if there had been nothing said on the plea hearing that provoked it. However, what the judge said was, on one view, no more than a paraphrasing by his Honour of a passage in Croughan’s written outline of submissions on the plea hearing, and to which Gerbing’s counsel on the plea hearing[12] took no exception.
[12]Not counsel who appeared before us.
The resolution of Gerbing’s application
Gerbing makes four specific complaints about the judge’s sentence. First, Gerbing complains about a statement in the judge’s reasons that deterrence is the dominant purpose of sentencing in robbery offences. Secondly, Gerbing contends that the judge was wrong to approach the sentencing exercise on the basis that rehabilitation could only displace deterrence as the dominant purpose of sentencing if Gerbing’s prospects of rehabilitation were compelling. Thirdly, it is contended that the judge erred in failing to consider whether protection of the community would be best achieved by encouraging Gerbing’s rehabilitation. Fourthly, the sentencing judge is said to have erred in concluding that Gerbing’s prospects of rehabilitation were ‘guarded’.
In support of his manifest excess ground (ground 5), Gerbing again relies upon the four complaints of specific error to which I have just referred. Additionally, in arguing that the sentence was manifestly excessive, Gerbing made two further submissions: first, that it was not open to the judge not to accept the evidence in the letters tendered from the applicant’s mother, grandmother and partner that the applicant had reformed and turned his life around from mid-2013; and secondly, that the only reasonable sentencing option open for Gerbing’s offending was a community correction order. Both of these propositions only need to be stated to be rejected.
While it is true that the letters of Gerbing’s nearest and dearest record their observations of him both prior to and subsequent to this offending, whether Gerbing had in fact reformed — and was, at the time of sentencing, reformed — was a matter for the sentencing judge to assess in the light of all of the evidence, including Gerbing’s recidivism in the past. The fact that the prosecutor did not object to the tendering of the letters did not require the judge to accept Gerbing’s submissions that he had ‘turned his life around’ and ‘reformed in mid-2013’. While it might have been open for the judge so to conclude, in the light of Gerbing’s prior history and the false account he gave to police in December 2013, it was plainly open to the judge to take the view he did about Gerbing’s prospects for rehabilitation.
As to objective seriousness, Gerbing submitted to this Court that his offence was not a particularly serious example of the crime of robbery. I disagree. Gerbing’s victim — an 18 year old school girl alone at a bus stop in the early hours of the morning — was what has been described as a classically ‘soft target’. There is no need to recite any of the many statements by appellate courts concerning the gravity with which the robbery of soft targets has been, and is, viewed.[13] Adopting what was said in Alashkar,[14] such soft targets must be able to rely upon the full protection of the law. Further, those who contemplate exploiting the vulnerability of a soft target, in the fashion Gerbing did, must anticipate that the consequences for them may very well be the imposition of a substantial gaol term. I turn now to Gerbing’s complaints of specific error.
[13]R v Alashkar (2007) 17 VR 65, 74 [36] (‘Alashkar’).
[14]Ibid.
Gerbing’s complaints about specific error are without substance. The judge did not purport to lay down some universal proposition that the dominant sentencing consideration in all robbery cases is general deterrence. Read in context, the judge was saying no more than was said by Crockett ACJ[15] in R v Baldwin,[16] namely:
That deterrence is the primary consideration in cases such as this [in that case, a charge of armed robbery] has been emphasised over and over again in decisions of authority. The existence of a case establishing the promise of rehabilitation such as will displace deterrence as the critical component to be considered will, in my view, need to be of very considerable strength.
[15]With whom Gray and Southwell JJ agreed.
[16](1988) 39 A Crim R 465, 467–468 (‘Baldwin’).
In the circumstances of the present case (and remembering that Gerbing only fell to be sentenced in respect of robbery, rather than armed robbery), the judge was well-entitled to reason in the way he did to the sentence that he imposed on Gerbing. The complaints about the judge’s treatment of deterrence and its relationship with rehabilitation are without substance. Whatever might be said generally about the relationship between deterrence and rehabilitation in respect of particular offences, nothing said by the judge in sentencing Gerbing disclosed any error in the application of sentencing principles to the specific facts of Gerbing’s offending. I turn now to the specific issue of rehabilitation.
Gerbing’s complaints about the judge’s treatment of the issue of rehabilitation are also without substance. Given Gerbing’s prior criminal history and the other offending he committed while on the 2012 community correction order, it is difficult to see how the judge could have come to any conclusion other than that Gerbing’s prospects for rehabilitation were guarded. As I have already said, the judge was not bound to come to some different conclusion merely because the prosecutor permitted the tendering of the letters to which I have already referred.
As for giving Gerbing further leniency in an effort to promote rehabilitation, the judge was correct to note that Gerbing had already been the subject of a number of lenient sentencing dispositions. It was open to the judge to conclude that the proposition that the protection of the community would be best achieved by encouraging Gerbing’s rehabilitation was simply belied by Gerbing’s history.
Finally, so far as Gerbing is concerned, even if some error could be established in the sentencing process, having regard to the objective seriousness of Gerbing’s offending and his relatively bad prior history, it is not reasonably arguable that any less severe sentence should be imposed.
The resolution of Croughan’s application
Croughan makes three complaints about the sentence imposed upon him by the judge. First, Croughan contends that the sentence imposed was manifestly excessive. Secondly, Croughan submits that the judge erred by failing to have sufficient regard to Verdins principles. Thirdly, Croughan contends that the judge erred by failing to have sufficient regard to the principle of totality.
The totality argument arises from the following matters. Croughan was remanded in custody from 4 June 2013 to 17 June 2013. Following a period on bail, Croughan returned to custody on 8 October 2013. He remained in custody thereafter. Of this time in custody, only 143 days were taken into account as presentence detention for the current offending. The remaining time was taken into account with respect to other sentences. Croughan contends that in sentencing him, consistently with principles of totality, the judge should have had regard to all of Croughan’s time in custody from 4 June 2013. Croughan does not contend that the judge failed to have regard to totality — only that he had insufficient regard to it.
A remarkable aspect of Croughan’s totality complaint is that, notwithstanding that it was submitted to us that totality was Croughan’s principle complaint on this appeal, Croughan’s counsel never said anything to the sentencing judge that could have been understood as a submission about totality.[17] Rather, on the plea and in the course of what appears to be a submission about proportionality, Croughan’s counsel submitted that Croughan had already paid a significant penalty in relation to offending for which he had been earlier sentenced in 2014. I interpolate that, in the circumstances, one can hardly be critical of the judge for not expressly making reference to totality when he sentenced Croughan.
[17]See Romero v The Queen (2011) 32 VR 486, 489 [11].
On the plea hearing, the prosecutor tendered a summary dealing with the offending for which Croughan received one of the sentences of imprisonment imposed on him in 2014. The summary tendered related to offending that occurred on 2 October 2013 when Croughan stabbed the victim of that offending with a knife.
Croughan relies upon the sentence he received for that offending (sentenced in August 2014) and the sentence he received on appeal in May 2014 in respect of earlier offences of burglary (2 counts), theft (2 counts), stating a false name and theft of a motor vehicle, as giving rise to a contended for totality problem once Croughan was sentenced for the present offending. Croughan does not make a complaint that any of this pre-sentence incarceration was ‘dead time’.[18]
[18]See R v Renzella [1997] 2 VR 88.
A further difficulty with Croughan’s totality complaint is that there is no evidence of the circumstances of the offending for which he received the sentence in May 2014. No attempt was made by Croughan’s counsel on the plea to put any such material before the sentencing judge. That said, when one looks at the circumstances of the subsequent offending involving the knife (sentenced in August 2014), and considers the charges for which Croughan was sentenced in May 2014, it is not possible to come to a conclusion that there is any totality problem so far as the present sentence is concerned. Having regard to Croughan’s very bad prior history, and giving full weight to Verdins considerations (to which I will refer below), it is not reasonably arguable that the sentence imposed by the judge infringes principles of totality. I turn now to Croughan’s Verdins complaints.
There is no substance in Croughan’s Verdins complaints. In his reasons for sentencing Croughan, the judge expressly accepted the application of the relevant Verdins principles.[19] In argument, counsel for Croughan acknowledged the force of the proposition that the judge had accepted all of his Verdins submissions in the judge’s reasons for sentence. However, it was submitted that Verdins (or principles analogous to Verdins) should have been applied by the judge in respect of Croughan’s history of past offending. There is no substance in that submission. It suffers from a number of problems, not the least of which was that there was no evidentiary basis upon which it might be said that the judge should have somehow modified his views to reach more favourable conclusions about the issues of recidivism and rehabilitation. Additionally, it is to be noted that no such submission was made to the sentencing judge.[20]
[19]Reasons [38]–[41].
[20]Again, see Romero v The Queen (2011) 32 VR 486, 489 [11].
As with Croughan’s totality and Verdins complaints, there is no substance in Croughan’s complaint about manifest excess. Croughan’s offending was particularly bad. It involved an attack on a school girl with a knife, committed by a person with many prior convictions for violence and dishonesty. But for the Verdins considerations to which the judge referred to in some detail, one might have expected Croughan to receive a significantly longer term of imprisonment than that actually imposed.[21] Croughan’s manifest excess complaint is not reasonably arguable. The sentence Croughan received was, if anything, lenient.
[21]Cf Veen v The Queen (No 2) (1988) 164 CLR 465, 476-7; Boulton [71]; and DPP v Kemp [2015] VSCA 108 [48].
Conclusion
I would refuse each application for leave to appeal against sentence.
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