DPP v Candaza
[2003] VSCA 91
•25 June 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v. | |
| JOHN CANDAZA | No. 5 of 2003 |
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JUDGES: | WINNEKE, A.C.J., PHILLIPS and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 June 2003 | |
DATE OF JUDGMENT: | 25 June 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 91 | |
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Criminal law – Sentence – Director’s appeals – Young offenders – Armed robbery – Whether non-conviction disposition manifestly inadequate – Very sound prospects of rehabilitation – Pleas of guilty – Offending out of character – Personal circumstances of respondents – Sentences not manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W.E. Morgan-Payler, Q.C. and Mr R.A. Elston | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent Candaza | Mr O.P. Holdenson, Q.C. and Mr R.F. Thyssen | Director, Victoria Legal Aid, Dandenong |
| For the Respondent Koufomanolis | Mr P.F. Tehan, Q.C. and Mr S. Gardner | Galbally & O’Bryan |
| For the Respondent Mavros | Mr D.J. Ross, Q.C. and Ms C. Randazzo | Victoria Legal Aid |
| For the Respondent Nunez | Mr P.G. Priest, Q.C. and Mr M.J. Croucher | Grubissa White |
WINNEKE, A.C.J.:
I invite Chernov, J.A. to give the first judgment in this matter.
CHERNOV, J.A.:
On 11 December 2002, the respondents, Peter Koufomanolis (“Koufomanolis”), Andrew Mavros (“Mavros”), Michael Nunez (“Nunez”) and John Candaza (“Candaza”), whose ages then ranged between 18 and 21 years, pleaded guilty in the County Court at Melbourne to two counts of armed robbery contrary to s.75A of the Crimes Act 1958 that were committed by them on 25 May 2002. The maximum penalty for the offence of armed robbery is 25 years' imprisonment or 3,000 penalty units or 500 hours of community work over a two year period. The respondent Koufomanolis admitted 34 convictions (19 convictions for damaging property with intent and 15 convictions for wilful trespass) arising from one appearance before the Children’s Court at Dandenong on 10 November 2000. The offences essentially consisted of the respondent unlawfully entering premises and painting graffiti on train carriages. He was then aged 16 years and was released on a good behaviour bond for 12 months in the sum of $250. Mavros admitted one conviction for theft on 17 October 2001 at Dandenong Magistrates' Court for which he was released on a good behaviour bond for a period of 12 months. The offence, which was apparently committed in October 2001, involved taking fishing lines from the local K Mart store.
After hearing a plea in mitigation of sentence on 11 and 12 December 2002, the learned sentencing judge sentenced each respondent, on 13 December 2002, in respect of the first count, to a community-based order for a period of two years, without conviction, with a special condition to perform 400 hours of community work and, in respect of the second count, the judge imposed a fine of $3,000, the payment of which was stayed for 18 months. Because Mavros had, by committing the offences to which he pleaded guilty, breached his bond referred to earlier, the sentencing judge found the charge before the magistrate proved and confirmed the original order made by the magistrate.
The Director now appeals against the sentences imposed pursuant to s.567A of the Crimes Act on the sole ground that the non-conviction disposition was manifestly inadequate.
The circumstances of the offending can be briefly summarised. At approximately 2 a.m. on 25 May 2002, a car, driven by one Ivica Ivanusec (“Ivanusec”), in which the respondents were passengers, approached the area near the corner of Huntingdale Road and Railway Parade South, Chadstone, where a Pizza Hut restaurant was located. Three teenage boys were standing outside the restaurant and as the car approached they made gestures and certain remarks to the occupants of the vehicle. The respondents and Ivanusec thereupon decided to rob the boys. After Ivanusec had parked the car around the corner from where the boys were, the respondents disguised themselves in various ways. Candaza put on a baseball cap and pulled a hood over his head, while the others took scarves from the boot of the car and donned them as bandannas. One of the respondents then took a screwdriver from the boot. While Ivanusec remained in the car as a “getaway driver”, the respondents confronted the boys. In the course of that, Mavros produced the screwdriver and demanded from one of the boys, Mark McKeown, his mobile telephone. Initially McKeown resisted this demand and a minor scuffle ensued. McKeown was unsuccessful in his attempts to refuse to give in to the demand but, after having the screwdriver held to his stomach area and then pointed at his neck by Mavros, he acceded to the demand and handed over his mobile telephone. Koufomanolis then took the screwdriver and approached another of the boys, Scott Bugden, who told Koufomanolis that the boys “did not want any trouble”. Koufomanolis nevertheless pointed the screwdriver at Bugden and demanded that he hand over his mobile telephone. Bugden replied that he did not have one and, fearing for his safety, suggested he take his backpack instead, which Koufomanolis did. The respondents returned to the vehicle and fled the scene but were intercepted and arrested by the police soon afterwards. In their respective records of interview each respondent made full and frank admissions as to his participation in the group’s confrontation of the three boys. In the case of Candaza, he seems to have exaggerated his role in the offending and claimed that this was done in order to take responsibility for his younger co-offenders.
The presentment to which the four respondents pleaded guilty also charged Ivanusec with two counts of armed robbery arising out of the incident outside the Pizza Hut in the early hours of 25 May 2002. He, along with the respondents, pleaded guilty to the two counts before the learned sentencing judge on 11 December 2002. During the course of the somewhat unusually conducted hearing of the plea in mitigation, the judge queried the prosecutor and Ivanusec’s then counsel whether the charge of armed robbery was open in relation to Ivanusec and whether his rights in that regard had been adequately explained to him. His Honour raised similar queries in relation to Mavros. In the result, senior counsel were briefed to appear before his Honour as to the matters so raised by him. After some discussion with the bench, Ivanusec was given leave by the judge to withdraw his plea of guilty and consequently the presentment against him was adjourned for the purpose of his being arraigned before a jury in respect of those counts. Senior counsel for Koufomanolis informed his Honour that he had explained Koufomanolis’s position to him and that his instructions were not to seek leave to withdraw his plea of guilty. Thereafter, the hearing of the pleas in mitigation continued in respect of the respondents. There were no victim impact statements filed on behalf of the two victims, although, as the judge pointed out in his sentencing remarks, the respondents acknowledged in their records of interview that the victims feared being stabbed with the screwdriver in the course of the offending conduct. During the hearing of the pleas in mitigation his Honour also heard sworn evidence from the father of Mavros.
The judge accepted that each respondent:
(a)had pleaded guilty at the earliest opportunity and had shown deep remorse for his offending conduct;
(b)was from a hardworking family which was supportive of him and with which he continued to live;
(c)had made sound progress in his tertiary education and intended to work in his chosen field - Koufomanolis in advertising with a possibility of studying law, Mavros as a painter, Nunez in the design field with a view to establishing his own business and Candaza in fashion design;
(d)the offending was out of character;
(e)had a strong prospect of becoming a “model citizen” and contributing to the community.
His Honour also noted that Koufomanolis had shown talent as a soccer player, had worked in order to finance his studies, had completed a lifestyle course conducted by the Salvation Army in an effort to rehabilitate himself and that his previous offending, which, as I have said, involved painting graffiti and unlawful entry, occurred when he was 16 years of age. Mavros had, his Honour said, considerable sporting talent and, on the evidence, had the potential of playing for the South Melbourne Soccer Club in the National League. As for Candaza, the learned sentencing judge noted that he had emigrated from the Philippines with his family in 1992 and had been involved in community services.
The learned sentencing judge treated the respondents as being equally culpable for the offending and this has not been challenged by the Director. His Honour considered that, whilst the crimes committed by the offenders were not at the upper end of the range and were committed almost on the spur of the moment and were pursued not so much for material gain but as a “testosterone laden showing of strength”, they were nevertheless serious and called for specific and general deterrence. The judge also accepted that the offending was gratuitous, cowardly and violent and that crimes of this nature ordinarily called for the imposition of a custodial sentence. I note for completeness that it has not been suggested that the offences were committed in a context which involved the influence of alcohol or drugs.
Although the Crown submitted in the course of the hearing of the plea in mitigation that it was appropriate for his Honour to impose a custodial sentence, it said that it would be a matter for his Honour how such a sentence should be served. The judge, however, considered that, in the particular circumstances of the case, a custodial sentence was not warranted and that an appropriate form of punishment would be for the respondents to undertake a considerable amount of community work “as a lasting reminder of a very serious nature of what you did on that night”. I have already mentioned that a substantial fine was also imposed on the respondents, the payment of which was stayed for a significant period in order to give them the opportunity of earning the amount necessary to meet it. Hence, it is not a case where the judge failed to impose any significant punishment in respect of the serious offences committed by the respondents. The argument by the Director really was that greater punishment should have been imposed in the form of the recording of a conviction. But his Honour considered that the respondents have a strong prospect of rehabilitation and concluded that, in the circumstances, the long-term detrimental economic and social effect on them of a conviction would place that potential at risk. It is this aspect of the sentencing disposition, as I have said, that the Director claims is wholly inadequate.
The principles applicable to the determination of Director’s appeals have been authoritatively stated in a number of cases[1] and need not be detailed. As the President said in Whiteside and Dieber, essentially it is only in the rare case where this Court considers that it is necessary for the purpose of maintaining proper sentencing standards and principles and to correct errors that it interferes, at the instance of the Director, with a sentencing discretion already exercised against the respondent. Where, as here, it is not alleged that the judge made any specific sentencing error which would vitiate his sentencing discretion, the question is whether the sentence is quite outside the range of sentences open to the sentencing judge in the exercise of a sound discretionary judgment or, put another way, whether the disposition is plainly inappropriate. In that context, it is necessary also to bear in mind two matters. One is that this Court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a manner different from that in which the sentencing judge exercised it.[2] The other is that, if this Court were to re-sentence the respondents, it would ordinarily be required to give recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than it considers should have been imposed at first instance.[3]
[1]See, for example, R. v. Clarke [1996] 2 V.R. 520 at 522-523 per Charles, J.A. with whom Winneke, P. and Hayne, J.A. agreed; Lowndes v. R. (1999) 195 C.L.R. 665 at 671-672 and 679; Dinsdale v. R. (2000) 202 C.L.R. 3421 at 339-341 and Director of Public Prosecutions v. Whiteside and Dieber (2000) 1 V.R. 331 at 335-336 per Winneke, P.
[2]Lowndes at 671-672 per Gleeson, C.J., Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan, JJ.
[3]R. v. Allpass (1994) 72 A.Crim.R. 561 at 562; Clarke at 522.
This Court has said on many occasions that the question whether a sentence is manifestly inadequate does not admit of much argument. On its face, the sentence either is or is not plainly disproportionate to the criminality of the offending conduct and the mitigating factors that operate in relation to the offender. The appellant accepted that a great number of mitigatory factors were applicable in respect of each of the respondents. It was submitted on his behalf, however, that for a crime as serious as armed robbery a disposition other than a custodial sentence was unusual and a disposition without recording a conviction should only be available in rare and exceptional circumstances. In the context of this case, it was argued, the mitigating factors present may have justified a sentence that did not involve immediate custody, but they were not such as to warrant no conviction being recorded. Consequently, it was said, the failure to record a conviction was so manifestly inadequate as to constitute an error of principle.
It is plain from his Honour’s sentencing remarks that he recognised and took into account the seriousness of the offence and of the offending and considered that, ordinarily, the appropriate sentencing disposition would be custodial. But his Honour must have been persuaded that the matter before him was out of the ordinary or exceptional, given the respondents’ young years, their insight into their unacceptable behaviour towards the young boys, their personal circumstances and their prospects of rehabilitation. The judge obviously considered that rehabilitation was a key principle in the sentencing disposition and that a conviction would place that prospect in serious jeopardy. It is also apparent from the judge’s sentencing remarks that he had present to his mind, when constructing the sentence, the relevant provisions of the Sentencing Act 1991, including the criteria set out in s.8, to which a sentencing judge must have regard when determining whether or not to record a conviction. Furthermore, his Honour had before him, for sentencing purposes, a pre-sentence report in respect of the respondents which confirmed their suitability for being admitted to community-based orders. As counsel pointed out, the judge noted in his sentencing remarks:
“In each of your cases it is self-evident that a conviction for crimes as serious as these will pose great difficulties in the future, in terms of gaining employment, in terms of obtaining the accoutrements of business and the like. I am aware of s.8 of the Sentencing Act and the matters to be taken into account. As the fact of conviction is itself a form of punishment, when I look at the overall circumstances here, the long-term detrimental effects of conviction to you in an economic and social sense, in my view, justify me in not adding the additional punishment of conviction. It is a course which I undertake with some concern … “
Given the state of the evidence, it is not surprising that it was not suggested by the Crown that his Honour erred in his assessment of the respondents’ prospects of rehabilitation or in his view that a conviction might throw that prospect into doubt.
I agree with the submission of Mr Morgan-Payler for the appellant that in relation to crimes as serious as the ones that were committed here, a sentencing disposition that does not result in a conviction can only be justified in rare and exceptional circumstances. As Mr Tehan for Koufomanolis pointed out, however, there are cases of serious crimes where no conviction has been recorded. Counsel referred, by way of example, to R. v. McFarling,[4] where the Court allowed an appeal against sentence on four counts of theft totalling $3,500 by an accountant whose future prospects of employment would be impeded by the recording of a conviction.[5] In R. v. Brown, ex parte Attorney-General,[6] which involved dangerous driving causing death by a 23-year-old, no conviction was recorded because of the possible effect of a conviction upon the offender’s future career, although that aspect of the sentence was upheld only by a majority. Similarly, in DPP (Cth) v. Li[7] this Court dismissed a Crown appeal where the primary judge did not record a conviction against a 42-year-old businessman who had engaged in a sales tax fraud amounting to $160,000. This Court adopted a like approach in DPP v. Robinson.[8] It dismissed a Crown appeal against the failure by the sentencing judge to record a conviction in respect of a company director who pleaded guilty to six counts of publishing a misleading written statement as a director pursuant to s.85(1) of the Crimes Act, an offence which Charles, J.A. described as “inherently serious”. It needs to be said, however, that the offending in those cases did not involve intentional violence as occurred in the present case.
[4]Unreported, Court of Appeal, 20 November 1996, per Ormiston and Charles, JJ.A. and Vincent, A.J.A.
[5]See [15] of the judgment.
[6][1994] 2 Qd.R. 182 per Macrossan, C.J., Pincus, J.A. and Lee, J.
[7][2000] VSCA 76 per Tadgell and Chernov, JJ.A. and Hedigan, A.J.A.
[8][2000] VSCA 190 per Phillips, C.J., Charles and Callaway, JJ.A.
Be that as it may, as the High Court said in Lowndes v. R.[9], it is important to bear in mind that the discretion which the law commits to sentencing judges is of vital importance to the administration of our criminal justice. It is they who are vested with the onerous duty to exercise the sentencing discretion. In this case the discretion was vested in the sentencing judge and, as I have said, this Court can only interfere where relevant error has been demonstrated. Although I consider that the sentences imposed are very light, it seems to me that, in all the circumstances of this case, the seriousness of the offences should not wholly dictate the punishment that is
appropriate. As I have said, that the crimes were serious was not lost on his Honour and the sentences imposed do contain a significant element of punishment. On the other hand, the respondents were young men, whose personal circumstances, including their attitude to their families, studies and work, and their reaction to their own crimes enabled the judge to give considerable weight to rehabilitation and, not without some “concern”, allowed his sympathy to be “reasonably excited by the circumstances of the case”[10] and thus impose a very merciful sentence.[11] It is hoped that the respondents appreciate the sensitive and merciful disposition afforded to them by the learned sentencing judge and that they do not give cause for his Honour to regret the faith he had in their capacity for rehabilitation.
[9]At 672 per Gleeson C.J., Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan, JJ.
[10]R. v. Osenkowski (1982) 30 S.A.S.R. 212-213 per King, C.J.
[11]See R. v. Miceli [1998] 4 V.R. 588 at 594 per Charles, J.A.
In all the circumstances, I am not persuaded that the sentence fell altogether outside the range of those properly available to his Honour. Consequently, I would dismiss the appeal.
WINNEKE, A.C.J.:
I agree with Chernov, J.A. that these appeals should be dismissed because it has not been demonstrated that, in the particular circumstances of these Crown appeals, the judge’s discretion in not recording a conviction miscarried. It is, however, my view that, in all but the most exceptional case, persons who plead guilty to armed robbery should expect to have convictions recorded against them.
PHILLIPS, J.A.:
I too agree, substantially for the reasons given by Chernov, J.A., that these appeals should be dismissed. I would only emphasise that it will be a rare case
indeed in which a finding of guilt for armed robbery will not be followed by a conviction. It troubles me that in this case the penalties imposed, including substantial fines of $3,000 and significant community-based orders to run for two years, were imposed without conviction. The one seems to me arguably out of kilter with the other; and there is, too, the judge’s own expression that he undertook the course that he did “with some concern”. However, there is power in the court to impose such penalties without recording a conviction, and the question whether a conviction should be recorded was here a matter for the proper exercise of the sentencing discretion. In the particular circumstances of these cases I have concluded, despite initial doubts, that failing to record a conviction was a choice that was reasonably open to his Honour and that this Court cannot intervene simply to reverse his decision in that respect.
WINNEKE, A.C.J.:
The formal order of the Court is that the appeals are dismissed.
MR HOLDENSON: I make application for an indemnity certificate under s.15(1)(a) of the Appeal Costs Act in respect of the respondent’s own costs of the appeal.
WINNEKE, A.C.J.: That is four, I take it?
MR HOLDENSON: Yes.
WINNEKE, A.C.J.: Those certificates will be granted.
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