Damian Honeysett v The Queen

[2018] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0183

DAMIAN HONEYSETT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No Oral Hearing
DATE OF JUDGMENT:	2 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 14
JUDGMENT APPEALED FROM:	DPP v Honeysett [2017] VCC 1006 (Judge Lawson)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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CRIMINAL LAW –  Sentence – Application for leave to appeal against sentence – Applicant pleaded guilty to one charge of armed robbery and one charge of theft – Applicant and co-offender robbed liquor store armed with knives – Applicant sentenced to five years’ imprisonment with a non-parole period of 3 years – Whether sentence manifestly excessive – Whether sentencing judge erred in ordering six months cumulation on theft charge – Whether applicant’s youth, deprived background and aboriginality appropriately taken into account in mitigation – Whether applicant’s participation in Koori Court process a consideration in sentencing synthesis – Leave to appeal against sentence granted.

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APPEARANCES:	Counsel	Solicitors
No appearances

WEINBERG JA:

1. On 25 July 2017, the applicant pleaded guilty, in the Koori Court Division of the County Court of Victoria, to one charge of armed robbery and one charge of theft. The applicant seeks leave to appeal against sentence pursuant to s 278 of the Criminal Procedure Act 2009. The charges arose out of events that took place on 24 February 2017, involving the theft of a motor vehicle and an armed robbery of a Dan Murphy’s liquor store.

1. On 28 July 2017, the applicant was sentenced as follows: 

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Armed Robbery	25 years’ imprisonment	4 years and 6 months’ imprisonment	Base
2.	Theft	10 years’ imprisonment	1 years’ imprisonment	6 months
Total Effective Sentence		5 years’ imprisonment
Non-parole period		3 years
Pre-sentence detention declared:		154 days
s. 6AAA statement:		6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months
Other relevant Orders:		Compensation of $1052.35 to Dan Murphy’s

Grounds of appeal

1. The applicant seeks to rely upon the following grounds of appeal:

Ground 1:

The individual sentences, the total effective sentence, and the orders for cumulation are manifestly excessive, particularly in view of the following matters:

a)        The applicant’s young age (24);

b)        The applicant’s tragic personal history;

c)        The applicant’s aboriginality;

d)The applicant’s exemplary involvement in the Koori Court process; and

e)The applicant’s evident remorse both through his early plea and his engagement with the Elders during the sentencing conversation.

Ground 2:

The learned sentencing judge erred in ordering six months’ cumulation on charge 2 in all the circumstances.

Summary of relevant facts

1. On 24 February 2017, at about 9.15 am, the applicant’s co-offender, Halit Dogan, was captured on CCTV stealing a motor vehicle from a service station on Nepean Highway, Chelsea.

1. Later that same day at about 2.00 pm, the applicant and another co-offender, Thomas Coumvoulidis, entered a shop in Mount Waverly. Mr Coumvoulidis was captured on CCTV stealing a pair of sunglasses. Short after, they met with Mr Dogan and got into the stolen vehicle. The applicant put on a cap, sunglasses, and covered the lower part of his face with a bandanna.

1. At about 2.24 pm,  the applicant and his co-offenders drove to Dan Murphy’s liquor store in Glen Waverly. The applicant ran into the store armed with a knife while Mr Coumvoulidis kept guard outside. Mr Coumvoulidis was armed with a meat cleaver and was carrying a grocery bag. 

1. The applicant ran to the register, pushed a customer out of the way,  pointed the knife at an employee and demanded money from the till. The employee screamed, causing the store manager to approach the register and attempt to remove the cash drawer. The applicant waved the knife around, told the manager to hurry up, and the customer to stay back.

1. As the manager was having trouble removing the cash drawer, the applicant told her that she ‘had 30 seconds’. One customer heard the applicant say ‘I’m going to count to five’. Another customer said that the applicant started to count from one to five, and said that when he got to five, he would stab the manager.

1. Once given the cash drawer, the applicant ran from the store and, with his co-offenders, drove away in a northerly direction. The cash drawer contained $1052.35.

1. Police recovered the stolen vehicle the next day. The applicant and Mr Dogan were arrested on that day. Both gave ‘no comment’ interviews in relation to the armed robbery.

1. Mr Coumvoulidis was also arrested soon after. He is contesting the charge of armed robbery and his trial is listed for later this year. Mr Dogan was charged with theft of the motor vehicle. He was not ultimately proceeded against for the armed robbery.

Sentencing remarks

1. The applicant was aged 23 at the time of the offending, and 24 when he came to be sentenced. The sentencing judge considered his criminal record to be ‘significant and concerning’, noting that it dated back to February 2008. Her Honour noted, in particular, that a number of the applicant’s prior convictions were for armed robbery, as well as robbery, burglary and theft.

1. The sentencing judge took into account the applicant’s active engagement with the sentencing conversation in the Koori Court Division. She also took into account his early plea of guilty and his genuine remorse, as mitigating factors. She noted that the applicant had demonstrated a strong desire to improve his prospects for the future, and had taken a number of steps towards achieving this goal while on remand. He had, for example, worked as a Billet in his unit.

1. The sentencing judge said, in her sentencing remarks, that she gave full weight to what she described as the applicant’s ‘difficult childhood and impoverished and dysfunctional family life’. This was, in large part, due to his parents having had serious drug problems. The applicant’s mother had died from a heroin overdose in 1997, when he was only four years old. His father had been in and out of jail throughout the applicant’s early life. His father died in 2009.

1. The applicant himself had also suffered from substance abuse since his early adolescence. The sentencing judge noted that the context to the present offending was heavy daily methamphetamine (ice) and GHB use. The genesis of the armed robbery was said to be to obtain money to settle a friend’s drug debt. Her Honour assessed the applicant’s prospects for rehabilitation as ‘guarded’.

1. It was noted in the sentencing remarks that the applicant had terrorised those customers and employees who were present at the Dan Murphy’s store at the time of the robbery. In particular, the store manager suffered from ongoing anxiety and a heightened sense of stress. She stated in her Victim Impact Statement that she was panicked by loud noises, and had become hypervigilant of her surroundings. She felt that she was no longer able to ensure the safety of her staff, for whom she felt solely responsible.

Submission on appeal

1. On the plea, it was noted that the applicant was the middle child of three with a younger sister and an older brother. He had been raised, initially, by his mother and father. Both were heavily drug addicted. The applicant had been put in foster care briefly before living with his grandmother in Reservoir. He had attended school until Year 8, but was unable to read or write. When the applicant was still young, he witnessed his father collapse following a brain aneurism, which brought about his death. Since about the age of 16, the applicant had been in and out of custody, and had never maintained consistent employment. He began using amphetamines when only 15 years of age.

1. It was submitted, on the plea, and again before this Court, in support of this application, that the background circumstances of emotional hardship, deprivation, dysfunction and disadvantage were relevant in four ways, as set out in Director of Public Prosecutions v Terrick.[1] These factors were explanatory and causative of the applicant’s offending, as well as explanatory of and connected to his drug use. Moreover, they required general and specific deterrence and denunciation to be moderated, and required further that there be focus on the need for rehabilitation in order to protect the community in the future.

   [1](2009) 24 VR 457.

1. It was recognised that the applicant’s prior convictions were both numerous and serious. However, it was submitted that his tragic and deprived history remained relevant to the sentencing task.

1. The sentencing judge was asked to acknowledge the endemic presence of substance abuse in aboriginal communities, and the grave social difficulties faced by members of those communities. Reports of two psychologists, Michael Crewdson and Carla Lechner, were tendered. It was clear that the applicant had a mild intellectual disability, and suffered from a persistent depressive disorder. Both reports expressed concern about the risk of institutionalisation.

1. As regards the applicant’s participation in the ‘sentencing conversation’, it was noted that the Koori Court is a different juridical entity to the County Court. It was further noted that the objectives of the Koori Court were listed as being to encourage participation of the accused in the court process, to encourage the accused to address his or her offending behaviour, to support the accused at the completion of sentence and to involve the community in the Court process.

1. The sentencing conversation, to which reference has been made, involves a level of informality since neither the presiding judge nor counsel wear robes. The judge enters the courtroom with the Elders who preside with him or her. Everyone sits around the bar table, at one level, and there is a discussion about the offending, using simple and plain English. During the sentencing conversation, the accused is encouraged to talk about the past, the reasons for the conduct and to explore what services or programs might be of assistance. The Elders speak to the accused on behalf of the Indigenous community.

1. It was submitted that, in the present case, the applicant had actively, appropriately and enthusiastically participated in the process. He had been confronted directly by the Elders, and had respectfully engaged with them. He had spoken about the type of support that would be of benefit to him in the community, and had expressed genuine remorse for what he had done. The Elders had vigorously reprimanded him for his actions. It was submitted that he bore their disappointment and chastisement with openness and dignity. He made no excuses for his conduct but took full responsibility for his behaviour.

1. The sentencing judge noted that the sentencing conversation had been ‘challenging’. She concluded that the applicant was genuinely remorseful, and that he had an evolving sense of motivation. He had displayed insight, maturity and contrition. Had the matter proceeded through the usual channels, rather than through the Koori Court, it might have been easier for the applicant. He was asked why he chose the Koori Court process, and said that he wanted to explain himself.

1. It was submitted that the sentencing judge had failed to give sufficient weight to the applicant’s engagement in the process, and had failed adequately to moderate the principles of specific deterrence and protection of the community.

1. Finally, it was submitted that the use of the stolen vehicle, in which the applicant was merely a passenger, did not warrant cumulation of six months’ upon the sentence for armed robbery.

1. In response, the Crown submitted that the sentencing judge had specifically taken into account the applicant’s youth, and had given his deprived background full weight. She had recognised the importance of his aboriginality, and his need to be connected with his culture. The matter had been dealt with in the Koori Court, and it was plain from her Honour’s sentencing remarks that the applicant’s conduct during the course of the sentencing conversation had been taken into account. Indeed, she had stated ‘I will have regard to your participation in this process and your expressed willingness to undertake rehabilitation in terms of fixing the non-parole period’.[2]

   [2]Transcript of Plea Hearing, DPP v Honeysett (County Court of Victoria, Judge Lawson, 25 July 2017) 52.21–24.

1. The Crown submitted that, having taken the applicant’s background into consideration, the sentencing judge was still bound to consider protection of the community as an important sentencing factor, particularly in light of the applicant’s criminal history. It was submitted that the sentence imposed was within range and that ground 1 ought to be rejected.

1. As regards ground 2, it was submitted that there was nothing wrong with a sentence of 12 months’ imprisonment on the charge of theft of the motor vehicle, or the order that 6 months of the sentence be cumulated on charge 1.

Conclusion

1. I have concluded that leave to appeal should be granted. There appears to be a relative paucity of jurisprudence from this Court regarding the principles to be applied by a sentencing judge when dealing with an Indigenous offender who has gone through a sentencing conversation in the Koori Court.  

1. In R v Morgan,[3] it was accepted that active participation in such a process, was more burdensome than appearing at a traditional plea hearing. In that case, the point was conceded by the Crown on the appeal. The Court went on to say that this was a factor that mitigated punishment, and explained that such an approach was consistent with legal principle.

   [3](2010) 24 VR 230, 237 [37] (‘Morgan’).

1. In Morgan, the Court of Appeal cited Neal v The Queen,[4] where Brennan J, as his Honour then was, stated that while the same sentencing principles were to be applied in every case, irrespective of the identity or ethnic or racial background of a particular offender, the sentencing court was bound to take into account facts which existed only by reason of membership of such a group. His Honour did not provide guidance as to the weight to be given to such facts, or how they were to be balanced against competing sentencing considerations.

   [4](1982) 149 CLR 305. See also Rogers and Murray v The Queen (1989) 44 A Crim R 301 and Bugmy v The Queen (2013) 249 CLR 571.

1. More recently, in Nicholson v The Queen,[5] this Court dealt with an appeal against sentence brought by an Indigenous offender. The appellant had been dealt with in the Koori Court for some 19 indictable, and two summary, offences. These were all offences of dishonesty, albeit not involving violence. The total value of the property obtained was substantial, exceeding some $112 000. The offending conduct also extended over a significant period of time. The appellant was aged 38, and had a bad criminal record. He had been sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years. The appeal was dismissed.

   [5][2017] VSCA 238 (‘Nicholson’).

1. Once again, there was no discussion in Nicholson of the weight separately to be accorded to the appellant’s active participation in a sentencing conversation in the Koori Court. Nor was there any discussion as to how that factor might be balanced against considerations of general and specific deterrence and the need to protection the community. 

1. Having regard to the lack of case law dealing in an extended way with that issue, it would be useful to have this Court provide guidance as to how, precisely, the procedures adopted in the Koori Court should impact upon the overall synthesis when trial judges sentence in such cases.

1. If I thought that there was no reasonable prospect that a lesser sentence would be imposed upon this applicant, if leave to appeal were granted, I would, of course, refuse such leave, in accordance with s 280(1) of the Criminal Procedure Act 2009. I am not of that view. I simply do not know what the Court, constituted by two or more judges of appeal, would be likely to do after hearing full argument in this case.

1. For these reasons, I propose to grant leave to appeal. I will do so on both grounds.

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