Avdic v The Queen
[2012] VSCA 172
•31 July 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0017
| NINA AVDIC | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | MAXWELL P, BUCHANAN and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 July 2012 |
| DATE OF JUDGMENT | 31 July 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 172 |
| JUDGMENT APPEALED FROM | DPP v Nina Avdic (Unreported, County Court of Victoria, Judge Chettle, 14 December 2011) |
---
CRIMINAL LAW – Appeal – Sentence – Armed robbery and conspiracy to commit armed robbery – Whether sentencing judge failed to have regard the appellant’s youth – Whether sentence manifestly excessive – Whether sentence more burdensome due to pregnancy and motherhood in prison – Appeal dismissed – No point of principle.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney | Mirko Bagaric Lawyers |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I will invite Osborn JA to deliver the first judgment.
OSBORN JA:
On 14 October 2011, the appellant was found guilty of one count of armed robbery and one count of conspiracy to commit armed robbery. On 17 October 2011, she further pleaded guilty to one count of trafficking in a drug of dependence (methylamphetamine).
Following a plea on 15 November and 8 December 2011 the appellant was sentenced on 14 December 2011 as follows:
(1) armed robbery – four years’ imprisonment;
(2) conspiracy to commit armed robbery – three years’ imprisonment;
(3) trafficking in a drug of dependence – six months’ imprisonment.
Twelve months of the sentence in respect of the conspiracy was cumulated upon the sentence for armed robbery, resulting in a total effective sentence of five years’ imprisonment. The sentencing judge fixed a non-parole period of three years.
Circumstances of the principal offending
On 11 August 2009, the appellant participated in the armed robbery of the Lyndhurst Hotel in Brunswick with her then partner, Dean Montanna, and an unknown male.
At 12:12 am the appellant entered the gaming area of the hotel and conducted surveillance of the premises. She played a poker machine for a few minutes and then left the premises. Shortly afterwards Montanna and the unknown male held up staff at the hotel. Montanna wore a balaclava and the unknown offender wore a black hooded windcheater. Montanna was armed with a silver coloured handgun and the unknown male was armed with an extendable baton.
On entering the hotel, the two men screamed that it was a hold-up. The manager stood up from where he had been sitting, put his hands in the air and led the men to the area behind the bar. He pointed to the cash register and told them to take what they wanted. One of the men responded, ‘we want the safe. Take us there or we’ll fucking kill you.’ The manager took Montanna to the strongroom while the unknown male removed $3,750 from the cash register. Montanna in turn removed $2,960 in cash from a safe in the strongroom. The manager then attempted to open a second safe which had a time delay lock but before the safe opened the offenders left. A total of $6,170 was stolen. The two armed robbers ran to an escape vehicle where the appellant was waiting. She drove them away.
Subsequently the appellant agreed with Montanna to commit another armed robbery at the Racecourse Hotel Werribee at around 9:05 am on Monday 14 September 2009. It was intended Montanna and another person or persons were to enter and rob the premises using at least one weapon. The appellant attended the Racecourse Hotel to conduct surveillance and it was proposed that she would drive the escape vehicle after the proposed robbery. The proposed robbery was thwarted by police who had the appellant and Montanna under surveillance at the time.
Circumstances of the appellant
The appellant was aged 23 at the date of the offending and 26 at the date of sentence. She was raised in a ‘stable and supportive middle class family’.
The sentencing judge accepted that the appellant had suffered ‘a gross physical assault’ when she was 15 ½ years of age. The events in issue were detailed in the second report of Mr Ian McKinnon, consultant psychologist, dated 19 November 2011. That report describes an incident which it is unnecessary to elaborate for the purposes of these reasons.
The sentencing judge accepted that it was after this traumatic event that the appellant went off the rails and lost self-regard, entered into a series of self-destructive relationships with abusive men and fell into drug use. The appellant developed a substance dependence using amphetamines, methylamphetamines, cannabis, ecstasy and cocaine. Mr McKinnon’s opinion (which the sentencing judge took into account) was that the appellant lost touch with her core identity, her moral compass was debilitated and she cared little about the negative consequences of her actions. Her ability to reason and make sound judgment was degraded and impaired by her drug use. His Honour referred to the appellant in the course of the plea hearing as a ‘good girl gone bad’.
Since being in custody, the appellant had re-established a relationship with her mother. At the date of sentence, the appellant was 20 weeks pregnant but had terminated the relationship she had had with the father of the child. Her mother’s evidence was that the toughness the appellant had exhibited prior to her incarceration had dissipated and she was focussed on her then unborn child. There was also evidence that the appellant had been drug-free since being placed in custody. She had undergone a rehabilitation programme in custody. His Honour concluded:
If you remain drug-free and focus on your child when it is born, and accept the support that your family is prepared to provide you, there are reasonable prospects for your future rehabilitation.
His Honour noted, however, that the appellant had ‘demonstrated little remorse’ for her conduct and was a ‘brazen and straight faced liar’ when she gave evidence upon the trial.
Ground 1 – the sentencing judge erred in failing to take into account the appellant’s youth
The sentencing judge stated that he accepted the appellant’s background was as set out in the report of Mr McKinnon. That background included reference to the appellant’s youth and her history of personal development. His Honour expressly stated that the appellant was now 26 years of age.
I do not accept that his Honour failed to take the appellant’s age at the date of offending (23) or at sentence (26) into account.
The plea was put primarily on the basis that the root cause of the appellant’s behaviour was the trauma she suffered when she was 15 and her subsequent self-destructive relationships and drug use. His Honour specifically confronted these issues. Considerations of youthful immaturity and personality development were subsumed by the psychological evidence.[1] His Honour also squarely addressed the appellant’s prospects of rehabilitation, which were necessarily interrelated to her age.
[1]Cf Azzopardi v The Queen [2011] VSCA 372.
There is nothing in this ground.
Ground 2 – the sentencing judge erred in failing to give consideration to the fact that the appellant was pregnant at the time of sentence and that imprisonment will be more burdensome as a result
Counsel for the appellant conceded that this ground should properly be regarded as raising a matter relevant to the question of manifest excess. Nevertheless, it is convenient to say something about it before turning to that global ground.
His Honour expressly acknowledged the fact that the appellant was some 20 weeks pregnant at the time of sentence.
We were informed on the hearing of this appeal that the appellant gave birth to a son in May of this year.
The evidence on the plea was that she would be accommodated in a special unit for mothers of young children. I am not satisfied that the evidence before the sentencing judge demonstrated that her pregnancy would render imprisonment more burdensome than for other prisoners. This is a not a case where the appellant will be separated from her child by reason of imprisonment.
There is also no fresh evidence making out the allegation of relative disadvantage due to pregnancy and young motherhood.
Ground 3 – manifest excess
It is submitted that the sentence imposed was manifestly excessive having regard in summary to the following factors:
(a) the appellant's youth;
(b) the existence of significant family support;
(c) the appellant’s lack of relevant prior convictions;
(d) that it was the appellant’s first experience of imprisonment;
(e) that the appellant was pregnant at time of sentencing;
(f) that the appellant had been drug free since being in custody;
(g) the delay between offence and sentence;
(h) that the appellant had a lesser role in the armed robbery offences and was led into the offences by her former partner who had an extensive criminal history including prior convictions for reckless conduct endangering life; reckless conduct endangering serious injury and possessing a controlled weapon;
(i) the sentencing judge’s positive findings that the appellant’s personality at the time of offending was causally related to the trauma she suffered as a teenager; and
(j) the sentencing judge’s positive findings that the appellant’s offending was connected to her drug use.
Whilst I accept that each of these factors was relevant to the sentencing judge’s discretion, including, as Counsel for the appellant emphasised, her personal history of significant trauma as a teenager, I am not persuaded that the sentence was manifestly excessive.
The armed robbery and conspiracy to commit armed robbery were serious examples of offences in respect of which the maximum penalty is 25 years.
They involved pre-planned organisation, the use of hire cars, surveillance and division of roles to minimise the chances of detection. The armed robbery which was completed involved the use of disguises, a handgun and an extendable baton. The staff at the hotel were threatened in the most serious terms. The robbery took place when customers were present. Victim impact statements confirm what might be inferred, namely that the robbery was severely traumatic to the persons present at the time.
The appellant took an integral part in both the armed robbery and the conspiracy to commit armed robbery, carrying out surveillance and accepting the role of getaway driver.
In addition, another judge may have imposed an element of cumulative sentence in respect of the trafficking offence which was evidenced by a period of trafficking on a continuing, commercial basis[2] and which was entirely distinct from the robbery offences. The sentencing judge elected not to do this.
[2]Giretti v R (1986) 24 A Crim R 112.
The offences, as a whole and in particular the robbery offences, raised very serious issues of appropriate punishment and general and specific deterrence. The sentences imposed cannot be said to be manifestly excessive having regard to the nature of the offending.
I would dismiss the appeal.
MAXWELL P:
I agree. In deference to the careful argument advanced by Counsel for the appellant and in recognition of the fact that the appellant is present by video link I add only the following.
This was, it seems to me, a difficult sentencing task and the manner in which it was carried out revealed the difficulty which confronts a judge sentencing for very serious offending but at the same time having to give proper weight to the significant personal matters which Osborn JA has referred to. In my respectful view, his Honour struck the balance, between matters pointing to a heavier sentence and matters pointing in the opposite direction, in a manner which makes appellate intervention quite impossible. The manifest excess ground requires it to be shown that it simply was not open to the judge taking all matters into account, to reach the sentence which he did. In the circumstances and for the reasons Osborn JA has given, it seems to me these sentences were moderate. His Honour was right to regard this as a case where responsibility properly attached to this appellant for her offending, notwithstanding her personal difficulties.
BUCHANAN JA:
I agree with Osborn JA. I also agree with the additional remarks of the President.
MAXWELL P:
The order of the Court is: appeal dismissed.
0