Blackler v The Queen
[2012] VSCA 16
•15 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0112
| LEE SINCLAIR BLACKLER | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | Neave, Harper JJA and Hollingworth AJA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2012 | |
DATE OF JUDGMENT: | 15 February 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 16 | |
JUDGMENT APPEALED FROM | DPP v Blackler (Unreported, County Court of Victoria, Judge Mullaly, 23 March 2011) | |
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CRIMINAL LAW – Appeal against sentence – Attempted robbery, attempted armed robbery, armed robbery – Whether manifest excess – Cumulation – Principles of totality and proportionality – Whether sentencing judge’s orders for cumulation excessive – Orders for cumulation not excessive – Appeal dismissed – No point of principle
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C Mandy | Leanne Warren |
| For the Respondent | Mr G Silbert SC | Craig Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
HARPER JA:
HOLLINGWORTH AJA:
On 23 March 2011, the appellant pleaded guilty to one charge each of attempted robbery, attempted armed robbery and armed robbery, and was sentenced as follows:
Charge on indictment Offence Maximum Sentence Cumulation 1 Attempted robbery 10 years’ imprisonment 12 months 6 months 2 Attempted armed robbery 20 years’ imprisonment 3 years 18 months 3 Armed robbery 25 years’ imprisonment 4 ½ years Base
The total effective sentence was 6 years and 6 months’ imprisonment, with a non-parole period of 4 years.
On 19 August 2011, Redlich JA granted the appellant partial leave to appeal against sentence, on the following ground: ‘The individual sentences imposed and the orders for cumulation were manifestly excessive and resulted in a total effective sentence which did not take into account appropriately the principle of totality.’
The offending all occurred in the early hours of the morning of 2 December 2010. On the evening of 1 December, the appellant went with his sister and a friend to a hotel near Geelong, to drink and play the poker machines. All three left around midnight, but the appellant returned alone a short time later. The appellant went to the main dispensing counter, and pointed at a male staff member using his hand and finger as though it were a gun. He told the staff member that he had a gun and not to make him get it out. He demanded cash. The staff member pressed the security alarm and the appellant ran from the hotel. (Count 1: attempted robbery)
At 1.10 am, the appellant’s sister drove him from her house to a service station in Breakwater. The appellant put on a balaclava and went inside. He was carrying a large kitchen knife and produced it as he approached the counter. He demanded money from the female attendant. She pressed the security alarm and went and locked herself in the adjoining office. The appellant ran from the store. (Count 2: attempted armed robbery)
The appellant was then driven to a convenience store in Geelong. He went into the store wearing the balaclava and holding the large kitchen knife. The male staff member was stocking shelves at the time. The appellant demanded money and was given $110.05. He also demanded cigarettes and was given 23 packets, before he ran out of the store back to his sister’s car. (Count 3: armed robbery)
Police apprehended the appellant as he returned to the car. He participated in an interview, but made no comment.
The appellant was around 50 years old at the time of offending. He had a long history of criminal convictions – including for theft, burglary and other dishonesty offences – going back more than 30 years. In June 1999, he had received two convictions for robbery, but his prior convictions had otherwise not involved violence. He had received numerous sentences of imprisonment over the years, totalling more than 20 years. Unfortunately, it seems that the appellant struggles to cope outside prison, due to anxiety and drug addiction, and invariably re-offends within a short period of being released. He was described by the learned sentencing judge, and his own counsel, as ‘institutionalised’.
In the course of his sentencing reasons, the learned sentencing judge expressly took into account the matters put in mitigation, including the appellant’s early plea of guilty, personal history, drug use and institutionalisation. However, his Honour also had regard to the appellant’s lengthy criminal history, and noted that at the time of these offences he had only been released from custody for about one month and was still on a suspended sentence. His Honour described the appellant’s prospects of rehabilitation as ‘very uncertain’.
In that regard, the learned sentencing judge did set a shorter than usual period before the appellant would become eligible for parole[1], stating that there was little he could do ‘but set a period of potential parole where [the appellant] can at least have some support.’
[1]The non-parole period was 61.5% of the total effective sentence.
However, the learned sentencing judge described the offences as ‘serious’. He noted that two of them involved the use of a ‘frightening knife’ and balaclava on vulnerable targets. His Honour rightly observed that:
People who work late at night and necessarily with cash must have a sense that if armed offenders terrorise them then the court will play its role in denouncing the criminal conduct and deterring others from embarking on a similar course in the future and the courts will do this by imposing stern terms of imprisonment.
On appeal, the appellant submitted that ‘even if the individual sentences in each case were appropriate (and it is submitted that they each fell at the upper end of available sentences) then the orders for cumulation were excessive’.
The individual sentences imposed were higher than the median and average sentences for those offences. For example, according to recent Sentencing Advisory Council data, the median sentence of imprisonment imposed in the higher courts for armed robbery over the period 2004-2009 was 3 years[2], and the median for attempted armed robbery over the period 2002-2007 was 2 years.[3] However, as the Crown rightly pointed out, those statistics are undoubtedly skewed by the very high proportion of younger offenders for those offences.[4] The sentencing policies which relate to younger offenders, including the need to promote their rehabilitation, would tend to moderate the individual sentences in those cases. Given the appellant’s age and significant criminal history, it is hardly surprising that the individual sentences imposed on him would be above the median and average sentences.
[2]Sentencing Advisory Council Sentencing Snapshot No 92.
[3]Sentencing Advisory Council Sentencing Snapshot No 36.
[4]For example, young persons aged 18-25 accounted for over half those sentenced for attempted armed robbery.
The individual sentences were not manifestly excessive. Nor do we accept that all of the individual sentences in fact fell ‘at the upper end of available sentences’, as asserted by the appellant. For example, the most serious charge was the armed robbery (count 3), for which the maximum penalty was 25 years’ imprisonment. A sentence of 4½ years’ imprisonment could hardly be described as ‘at the upper end’, either by reference to the statutory maximum, or to the range of sentences actually imposed in similar cases.[5]
[5]See for example paras [32.14.2.1] and [32.14.2.2] of the Victorian Sentencing Manual, produced by the Judicial College of Victoria, which contain a summary of Court of Appeal decisions over the past 5 years in relation to ‘high range’ (5 to 10 years’ imprisonment) and ‘low range’ (up to 5 years’ imprisonment) armed robbery sentences.
The appellant’s submissions focussed primarily on the issue of cumulation. At the plea, the appellant’s then counsel had argued that, because all three offences occurred within a very short period of time, they should be regarded as part of one continuing episode of offending, and there should be total concurrency for the three sentences. However, on appeal, the appellant’s current counsel conceded that the learned sentencing judge was correct to treat the offences separately, and that some cumulation was warranted. However, it was argued that the orders for cumulation were excessive, and the principle of totality had not been properly borne in mind by the learned sentencing judge.
It was appropriate for the learned sentencing judge to order some cumulation, to reflect the fact that the three offences were separate (even if close in time), and were committed on different victims. As to how much cumulation there should be:
There can be no inflexible rules as to how this is done. What is important is that whether or not cumulation is imposed must reflect the criminality of the offences and episodes involved, subject always to the due observance of the totality principle. …
The discretion to order cumulation between counts is a very broad one. It should not be unnecessarily circumscribed. Reasonable minds will differ as to whether cumulation should be ordered and if so in what amount.[6]
[6]R v Hogan [2008] VSCA 279, [28]-[29] per Maxwell P, Redlich JA and Robson AJA.
The learned sentencing judge expressly referred to the need to ensure that the sentence met the totality of the offending, and was plainly mindful of the principles of totality and proportionality when formulating the sentence.
The question here is ‘not whether this Court would have imposed the sentences or made the directions for cumulation which the judge did, but whether they were open to his Honour in the exercise of sound discretionary judgment.’[7] A sentence or an order for cumulation cannot be said to be manifestly excessive unless it is clearly outside the range reasonably open to the sentencing court. To succeed, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakeable.’[8] We are not persuaded that the orders for cumulation have resulted in such an excess here.
[7]The Queen v MDB [2003] VSCA 181, [12] per Ormiston, Batt and Vincent JJA.
[8]Hanks v The Queen [2011] VSCA 7, [22] per Bongiorno JA.
It follows that we would dismiss the appeal.
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