Director of Public Prosecutions v Samu
[2007] VSCA 191
•6 September 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 67 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PIO JUNIOR SAMU |
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JUDGES: | NETTLE and ASHLEY JJA and KAYE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 September 2007 | |
DATE OF JUDGMENT: | 6 September 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 191 | 1st Revision 14 September 2007 – at [24] |
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CRIMINAL LAW – Sentence – Crown appeal – Armed robbery and intentionally causing serious injury – Whether wholly suspended sentence of 12 months manifestly inadequate – No previous convictions – Exercise of mercy by judge on circumstances of case – Relative youth of respondent – Rehabilitation prospects extremely good – Family support, employment and sporting potential very strong – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Ms A Cannon, Solicitor for Public Prosecutions |
For the Respondent | Mr P F Tehan QC with Mr L C Carter | Victoria Legal Aid |
NETTLE JA:
This is a Crown appeal against a suspended sentence of six months' imprisonment imposed on the respondent upon pleading guilty to one count of armed robbery and one count of causing injury intentionally.
At the time of the commission of the offences the respondent was 23 years of age and had no prior convictions. He is now a qualified motor mechanic who shows promise as a first grade player of Rugby Union football and Rugby League in which he aspires to a professional career. He has a solid family background, the strong support and influence of his parents and responsibility for and the support of a girlfriend with whom, at the time of the sentencing, he had been involved for some one and a half years.
On the night of Saturday 1 October 2005, he went, in company with friends and relatives, to a function at Springvale Town Hall to raise funds for his Rugby Club. While there he consumed some six or seven cans of bourbon and coke, according to his own estimation. Then at about 10.30 p.m., one of his friends received a telephone call to the effect that the caller was in some trouble with another group of youths and asking that the respondent and his friends come to Oakleigh to help out.
The respondent and others thereupon got into a car and travelled to Oakleigh. On getting out of the car the respondent saw the 17 year old victim and a friend walking on the other side of the road in Dandenong Road, Oakleigh, towards the KFC restaurant in Dandenong Road. The respondent and one of his friends immediately crossed the road and approached the victim and as the victim reached the driveway of the Holden service centre on Park Road the respondent grabbed him by the shirt and said, "Give me your phone or I'll fucking kill you." As the respondent spoke those words the respondent's friend held a large ornamental samurai sword to the victim's stomach. Not surprisingly, the victim believed that he would be stabbed if he did not comply with the respondent's demand and so he immediately took his Motorola V3 mobile telephone from the right front pocket of his trousers and handed it to the respondent. The phone was valued at $400. But despite the victim's compliance with the respondent's demand the respondent then struck the victim to the left of the mouth and left side cheek with his right fist using a silver knuckle-duster.
At that point, the respondent and his friend ran off and the victim fled in the opposite direction and kept running until he reached the KFC restaurant. He there met his mother and was later taken to Monash Medical Centre where he was found to be suffering from a mild headache, a chipped tooth and a one centimetre shallow laceration with a small two centimetre bruise on and above the upper lip on the inside of his mouth. The lacerations were cleaned but required no further treatment. The victim was given appropriate head injury advice and discharged. He has not filed a victim impact statement.
On Friday 21 October 2005, at about 6.50 a.m., police attended at premises in Noble Park to execute a search warrant. The victim's phone was located at the premises and the respondent was placed under arrest and cautioned. He was then conveyed to Glen Waverley police station and in a tape recorded interview he admitted to robbery but denied using any weapons during the robbery or any knowledge of anyone else using a weapon. He also admitted to punching the victim and to placing his own SIM card into the victim's telephone and using it for two or three days. When asked why he had committed the armed robbery, he replied: "I was just maybe - I was just - I think I was just being a hero, sir. I dunno." He later made a confessional statement reflecting his answers in interview but again, denying the use of weapons. Thereafter, he was bailed and remained on bail until the sentencing hearing.
In his sentencing remarks the judge referred to the serious nature of the offences of armed robbery and causing injury intentionally and to the maximum penalties of 25 years and ten years' imprisonment which those offences attract.
His Honour also made mention of the fact that the offences had been committed randomly without any form of provocation and on a victim who was significantly smaller than the respondent. The judge noted that, in view of the innate seriousness of the offences, the Crown had sought an immediate term of imprisonment. It is apparent that His Honour was considerably troubled as to whether anything less would suffice.
As the judge went on to explain, however, there was in this case a range of considerations which militated against a substantial immediate term of imprisonment. They included first and foremost, the respondent's relative youth and that he was without any prior conviction and the fact that he had completed his apprenticeship as a motor mechanic and that his parents and girlfriend were supporting him. Further, as the evidence disclosed, the respondent had as early as October 2005,[1] sought counselling assistance to help him deal with alcohol and to avoid ever again getting into the sort of situation where he would be likely to re-offend and he had shown a dedication and commitment to the program of which he was and we are told now is continuing on a weekly basis. The respondent also gave sworn evidence which, with his early plea and the report of his counsellor, persuaded the judge the respondent was genuinely remorseful and unlikely to re-offend.
[1]Which was just following the incident.
The judge paid careful consideration to several decisions of this court in which the importance of rehabilitation has been stressed in the case of young offenders. He noted as a consequence that when a court is dealing with offences of this type it is placed in a particularly difficult position. As, in effect, His Honour observed, there is a constant tension and occasionally near intractable inconsistency between the demands of general deterrence, denunciation and just punishment and the imperatives of rehabilitation and ultimately, through rehabilitation, the maximisation of the protection of the community. Balancing those considerations as best he could the judge determined to impose a sentence of six months' imprisonment on each count to be served concurrently but suspended for a period of 12 months because His Honour perceived that it would afford the best chance of avoiding re-offending.
The Crown attacks the sentence at a number of levels. First, counsel for the Director of Public Prosecutions points out that the judge described the respondent's criminality at, "very much at the bottom of the scale" and counsel submits that on any analysis it is not open to regard offences of armed robbery and intentionally causing serious injury as being at the bottom of the scale.
Secondly, counsel argues that the particular circumstances of these offences put them well above the bottom of the scale of criminality for offences of armed robbery and intentionally causing injury. He refers, in particular, to the random choice of a physically smaller 17 year old passer-by as victim, the presence of an accomplice, the use of the samurai sword and knuckle-dusters and the gratuitous infliction of violence after the victim had handed over his telephone in response to the initial threat.
Thirdly, counsel contends that it is apparent from both the sentence itself and the evidence, the judge gave too much weight to rehabilitation and misconceived the extent to which the respondent has achieved rehabilitation and hence, the probability that he would re-offend. Counsel refers, in particular, to evidence given by the respondent on the plea to the effect that, while he does not now drink alcohol except on special occasions, he may still consume up to five or six cans on special occasions. Counsel argues on that basis that the applicant's present pattern of consumption is no different to that which resulted in the commission of the offences, namely, the consumption of six cans on a special occasion.
Fourthly, counsel submits that the judge was wrong to be satisfied that the respondent was truly remorseful given that the respondent did not ever admit to the police the use of the samurai sword or knuckle-duster and that even after he had pleaded to the use of the sword and the knuckle-duster, he continued to deny their existence when giving evidence on oath on the plea. At best, it was submitted, there was limited insight and acceptance of his actions on the night.
All things considered, counsel submitted, the total effective sentence reveals manifest inadequacy of such degree as to shock the public conscience and to require, therefore, that this court intervene in order to maintain adequate standards of punishment.
In my view, there is some force in the Crown's submissions. These offences were serious and they were aggravated by their random nature, the cowardly selection of a victim who was physically smaller and significantly younger than the respondent, the gratuitousness of the violence involved in the intentional infliction of injury and the consumption of alcohol. As this court has said repeatedly, those who when disinhibited by alcohol engage in unbridled violence in public places must expect condign punishment in which the principles of general, and on many occasions, specific deterrence, will play major roles.[2] Thus, ordinarily with offences of this kind, one would expect the imposition of significant immediate terms of imprisonment and that a sentence as minimal as was imposed would warrant appellate intervention.
[2]R v Stevenson [2000] VSCA 161, [27] (Winneke P).
Occasionally, however, there are exceptions. King CJ said in The Queen v Osenkowski[3] and it has been repeated in this court on a number of occasions:
"Prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
In my view, this is one such case.
[3](1982) 30 SASR 212; see also DPP v Roe [2005] VSCA 178, [18].
It is concerning that a young man of the size and strength that enables him to play first grade rugby should be involved in cowardly and gratuitous acts of violence of the kind which these offences has entailed. But as against that, it is significant that on the evidence which was before the judge and is now before us, the offences were found to be out of character and not likely to be repeated.
As the Crown submits, it is also of concern that the respondent had not given up drinking altogether by the time of sentencing and that, on one view of the matter, he has not reduced his level of consumption on special occasions below the level which resulted in the offending. But as against that there was cogent evidence of a change in lifestyle, a disengagement from the elements which had resulted in the respondent's trip to Oakleigh on the night of the offending and the development of insight and contrition backed up by strong parental involvement.
It is true, as the Crown contends, that the offences cannot, in a general sense, be described as being at the very bottom of the scale. But with respect, I take the judge's description of the offences in those terms as being directed to the range of criminality involved in offences of this kind. While there can be no doubt these sentences were serious, I do not disagree with the judge that, as such offences go, these were to the lower end of the range.
Counsel for the Director submitted that there was evidence before the judge, the result of both the plea of guilty and submissions on behalf of the respondent, which showed that the respondent and his friends had armed themselves before going out on the night in question and were, therefore, looking for trouble at the time when the offences occurred. He submitted on that basis that it is simply not possible to regard these offences as other than being at the middle to upper end of the range of seriousness.
The difficulty with that, however, is that it is not the way in which the case was conducted by the Crown below. It was not part of the Crown's contentions nor was it part of the basis on which the judge sentenced the respondent that he and his colleagues had gone out armed, looking for trouble. To the contrary, as the judge approached the matter, consistently with the submissions put on behalf of the Director below, the offending came about fortuitously as a result of the offenders being invited to go to Oakleigh to assist their friends.
In my view, provided the facts are seen in that light, it is not inappropriate to treat them as the judge did, as placing the offending towards the lower end of the range of criminality for offences of this kind.
Finally, and most importantly, the judge evidently perceived that the respondent's trade qualifications and employment, family support and sporting involvement gave him a very good chance of complete rehabilitation so long as he was not sent immediately to gaol, whereas if he were imprisoned and so deprived of that support and opportunity to work and pursue his sporting potential, the chances of rehabilitation were likely to be significantly reduced, and in turn, the chances of re-offending with consequent prejudice to the community, were likely to be exacerbated.[4]
[4]See and compare DPP v Leonard John Anderson [2005] VSCA 68, [53].
In the end, therefore, and despite that this was a merciful sentence, I am not persuaded that the sentencing discretion miscarried. The circumstances in which it is appropriate for this court to intervene on a Crown appeal against sentence are limited. Manifest inadequacy alone is not sufficient. It must be of a degree which is clear and egregious and the sentence must be so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the courts to play their part in deterring the commission of offences.[5] Having regard to what was said in the course of submissions, it should also be understood that there are difficulties inherent in the idea that a sentence which is not otherwise manifestly inadequate should be regarded as manifestly inadequate because it is suspended.
[5]DPP v Josefski (2005) 158 A Crim R 185, 187 [4]-[20] (Maxwell P); DPP v Bright (2006) 163 A Crim R 538, 542 [10]-[11] (Redlich JA).
Assuming that the public were armed with a full understanding of the considerations which informed the judge's sentencing synthesis in this case, I do not consider that their collective conscience would be shocked to the point that warrants
appellate intervention.
I would dismiss the appeal.
ASHLEY JA:
I agree.
KAYE JA:
I agree also.
NETTLE JA:
The appeal will be dismissed.
COUNSEL:
Would the court grant a certificate under the Appeal Costs Act?
NETTLE JA:
The Court grants to the respondent an indemnity certificate pursuant to s 14 of the Appeals Costs Act 1998.
COUNSEL:
Thank you, Your Honour.
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