Dizon v The Queen
[2011] VSCA 352
•17 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0382
| HENRY DIZON | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | BONGIORNO JA and WHELAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 August 2011 |
| DATE OF JUDGMENT | 17 August 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 352 |
| JUDGMENT APPEALED FROM | R v Poblete (Unreported, County Court of Victoria, Judge Jenkins, 18 October 2010) |
---
CRIMINAL LAW – Appeal against sentence – Appellant participated in armed robbery with two co-offenders – Pleaded guilty to two charges of armed robbery, one charge of theft and one charge of possessing a drug of dependence – Sentenced to total effective sentence of 3 years and 9 months’ imprisonment with non-parole period of 2 years and 6 months – Co-offenders received less severe total effective sentence with same non-parole period – Whether sentencing judge failed to apply principle of parity properly – Appeal dismissed – Comparative moral culpability is a matter of judgement – Open to sentencing judge to treat offenders’ conduct as sufficiently comparable so as not to discriminate between them in sentencing process – No point of principle.
---
| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr T Kassimatis | Valos Black & Associates |
| There was no appearance for the Crown |
BONGIORNO JA:
This appeal is by one of three jointly indicted men who robbed a Target store at Point Cook shortly after closing time on 24 April 2010. All the staff at the store had already left except for two managers, D and Z, who had just finished counting and recording the day’s takings. They were leaving the store when they were accosted by the three men wearing balaclavas and armed with knives.
The appellant, who had been recruited somewhat late in the piece by his co-offenders, was detailed to ‘contain’ Z while the others took D to the cash office to obtain the cash held there. He held Z near the back door of the premises and tied his feet and hands together with cable ties. He also placed a pillowcase over Z’s head and threatened him with a knife. At one point, the appellant took Z’s mobile phone, wallet and keys and said to him ‘[t]his is for insurance, I know where you live now’. Z was terrified that he would be stabbed or beaten.
The two other offenders obtained approximately $28,241.92 in cash from the cash office as well as a number of electronic gadgets known as iPods. They then joined the appellant, who was guarding Z. Together, they fled in Z’s motor vehicle, which they subsequently discarded. Z and D ultimately freed themselves and called the police who commenced an investigation.
The appellant’s co-offenders were arrested on 28 April 2010 and he was arrested in Wodonga on 29 April 2010. When arrested, he was carrying a quantity of methylamphetamine which the Crown accepted was for his personal use only.
Each of the offenders was charged with one charge of armed robbery (charges 1 and 2) and one charge of theft (charge 4). The armed robbery charge related to the robbery of the items in the cash office at the Target store and the theft charge related to the theft of Z’s motor vehicle. The appellant was also charged with an additional charge of armed robbery (charge 3) and a charge of possessing a drug of dependence (charge 5). The second armed robbery charge related to the appellant’s taking Z’s mobile phone, wallet and keys and the charge of possessing a drug of dependence related to his possession of the methylamphetamine.
Although initially reluctant to cooperate with the police, the appellant ultimately made a full disclosure with respect to his involvement in these offences and pleaded guilty to all of the charges upon which he was indicted.
On his plea in the County Court, the appellant was able to put forward significant matters of a personal nature going to mitigation, including testimonials, certificates as to self-improvement he had undertaken in prison, his virtually offence-free past and, with respect to remorse, a written apology to his victims. He was also able to produce a number of clean drug screens, significant because of the drug offence with which he was charged. The other two offenders had more significant criminal histories. In particular, one of his co-offenders had 41 convictions from 13 prior court appearances for offences relating to the possession of weapons and firearms and drug‑related offences. In committing the robbery with the appellant, this co-offender also breached a suspended sentence imposed only 11 months before. The other co‑offender had 12 convictions from 4 court appearances for offences ranging from drug-related and deception offences to convictions for aggravated burglary, intentionally causing injury and criminal damage for which he had received a suspended sentence.
On 18 October 2010, the appellant was sentenced as follows:
Charge
Sentence
Cumulation
Charge 1
3 years’ imprisonment
Base sentence
Charge 3
12 months’ imprisonment
3 months
Charge 4
12 months’ imprisonment
6 months
Charge 5
Fine of $1,000
Total effective sentence
3 years and 9 months’ imprisonment
Non-parole period
2 years and 6 months
His co-offenders were each sentenced to 3 years’ imprisonment on the armed robbery charge and 12 months’ imprisonment on the theft charge, with 6 months of the sentence on the latter charge cumulated upon the sentence imposed on the former charge, resulting in a total effective sentence of 3 years and 6 months’ imprisonment. A non-parole period of 2 years and 6 months was fixed.
This appeal
This appeal was argued ultimately on only one ground and that was the ground of disparity or lack of disparity in sentencing. This ground was concerned with the alleged failure of the sentencing judge to properly characterise the roles of each of the offenders in the offending for which her Honour sentenced them and her alleged failure to apply the principle of parity properly in respect of the sentence imposed on the appellant.
Upon the hearing of the appellant’s plea before the sentencing judge, the prosecutor submitted a range of four to five years’ imprisonment for the total effective sentence with a non‑parole period of two and a half to three years. He submitted that the only other offender then being dealt with should receive a total effective sentence of three to four years’ imprisonment with a non‑parole period of two to three years. The disparity was said to be warranted by the fact that the appellant faced two charges of armed robbery whereas the other offender faced only one. The prosecutor also referred to the fact that the appellant was 38 years old and the other offender was ten years younger. The appellant’s counsel responded to the effect that there was no reason for such disparity in the sentences imposed on the appellant and the other offender. He gave three reasons. Firstly, he said, the appellant was not involved in planning the robbery. Secondly, the appellant ‘[came] into it much later’ than the other offender. Finally, the appellant had a significantly less problematic criminal record. Accordingly, the appellant’s counsel argued, if anything, the appellant should receive a lesser sentence than the other offender. Certainly, there was no basis for the disparity proposed by the prosecutor.
In her sentencing remarks, the sentencing judge summarised counsel’s submission as being:
…there should not be a disparity in sentencing, as you were not involved in the planning and had a limited prior criminal record compared to your co‑accused.
She was referring, of course, to this appellant.
On the application for leave to appeal, it was argued that this statement by her Honour indicated that she had misunderstood counsel’s argument which was not that there should be equal sentences imposed on his client and the other offenders but rather that his client should receive a less severe sentence for the reasons stated.
There is some merit in this argument. Counsel’s submission as to parity must be seen in the context in which he made it. He was responding to the prosecutor’s argument that the appellant should receive a harsher sentence than the other offender then being dealt with. By submitting that there should not be any such disparity, he was in fact arguing that there should be disparity but disparity the other way. This is clear from the transcript of the plea. In summarising counsel’s argument, her Honour does appear to have misunderstood or at least misstated that argument. However, in the event, it will have no bearing on the determination of this appeal.
The argument as to the appellant’s role
It is clear that the appellant was not the instigator of the robbery of the Target store. His co‑offenders had planned the robbery. One of them was a former employee of Target and the boyfriend of the manager, D, who was suspected of being involved in the robbery but was never charged. The appellant’s co-offenders recruited him apparently ‘at the last minute’ although there may be some doubt about when this actually happened.
Counsel for the appellant sought to cast the appellant’s role as being subsidiary to that of his co-offenders. He referred to the others as the instigators of
the escapade and submitted that the sentencing judge erred in regarding the different roles played by each of the offenders as having no significant bearing upon the appellant’s sentence.
Comparative moral culpability or criminal responsibility for a crime cannot be measured with precision. Comparative culpability for sentencing purposes must always be a matter of the sentencing judge’s impression taking into account all the circumstances of the case.
Whilst in this instance it is clear that the appellant was not the instigator of the criminal activity involved in robbing the Target store, his participation was by no means minor. He tied up and contained the only male manager, Z, thus enabling his co-offenders to find and take the money and goods which became the proceeds of the robbery. He shared in those proceeds. Some of them were found on him upon his arrest.
With regard to the personal attributes of the three offenders, whilst it is true that the appellant’s prior criminality was less than that of the other offenders, they were both younger than he was. It was open to the sentencing judge to treat the offenders’ conduct as sufficiently comparable so as not to discriminate between them in the sentencing process. As I have said, ultimately it is a matter of judgement.
I would dismiss the appeal.
WHELAN AJA:
I agree.
BONGIORNO JA:
The order of the Court is that the appeal is dismissed.
---
0
0
0