DPP v Ghazi
[2015] VSCA 188
•21 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0227 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ABDULLAH GHAZI | Respondent |
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| JUDGES: | REDLICH, SANTAMARIA and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 May 2015 |
| DATE OF JUDGMENT: | 21 July 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 188 |
| JUDGMENT APPEALED FROM: | DPP v Ghazi (Unreported, County Court of Victoria, Judge Parsons, 19 September 2014) |
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CRIMINAL LAW – Sentence – Five armed robberies – Youthful offender – Child offender at time of first two armed robberies – Whether sentencing judge wrongly excluded general deterrence as a sentencing consideration in respect of all charges – CNK v The Queen (2011) 32 VR 641; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43, considered – Whether sentence manifestly inadequate – Importance of rehabilitation for a very youthful offender – Sentence imposed lenient but not outside the range – Appeal dismissed.
CRIMINAL LAW – Whether Director must establish manifest inadequacy in order to succeed on a ground alleging specific error – Criminal Procedure Act 2009 s 289 – Need to prove manifest inadequacy doubted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J R Champion QC with Ms G A Coghlan | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr L W Hartnett with Ms K A Blair | Dean Cole & Associates |
REDLICH JA
SANTAMARIA JA
BEACH JA:
The respondent was sentenced in the County Court to three years’ detention in a youth justice detention centre on five charges of armed robbery, one charge of criminal damage, two charges of attempted armed robbery, one charge of obtaining property by deception and a summary offence of possession of a controlled weapon without excuse.[1]
[1]DPP v Ghazi (Unreported, County Court of Victoria, Judge Parsons, 19 September 2014) (‘Reasons’).
The Director of Public Prosecutions (‘Director’) appeals against the respondent’s sentence on two grounds:
1. The learned sentencing judge erroneously applied CNK v The Queen[2] and therefore wrongfully excluded general deterrence as a sentencing consideration relevant to charges 3–9 and the summary offence.
2.The sentence imposed was manifestly inadequate. In fixing the sentence … the sentencing Judge–
(a) failed to give sufficient weight to the principles of punishment, denunciation, protection of the community and both general and specific deterrence;
(b) failed to have sufficient regard to the nature and gravity of the offences;
(c) failed to have sufficient regard to the maximum penalties prescribed for the offences;
(d) gave excessive weight to factors in mitigation including the respondent’s youth; and
(e) failed to have sufficient regard to the impact of offending upon the victims.
[2](2011) 32 VR 641 (‘CNK’).
For the reasons that follow, we consider that the appeal should be dismissed.
Circumstances of the offending
The respondent pleaded guilty to each charge on the indictment. The respondent was 17 years of age at the time of the commission of charges 1 and 2. He was aged 18 at the time of the commission of the remaining charges. He was 20 years of age at the time of sentence.
An agreed amended summary of prosecution opening was tendered on the respondent’s plea as the factual basis on which the respondent was to be sentenced. As the Director submits that the objective gravity of the respondent’s offending required the imposition of a term of imprisonment in an adult prison in excess of three years, it is necessary to set out the circumstances of the offending at some length.
The offending conduct primarily consisted in the commission of five armed robberies and two attempted armed robberies over a seven month period between April 2012 and October 2012. These offences were committed in company, with groups of between two and six male offenders involved in each offence. The respondent was employed as a roof plumber for H & A Majestic Plumbing (‘Majestic Plumbing’). It was through his place of employment that he met his co-offenders.
The first incident took place on 23 April 2012 at the Furlan Club. After reconnaissance was undertaken by three of the respondent’s co-offenders on 19 April 2012, the respondent met with his co-offenders on 23 April. He was provided with a firearm, balaclavas and gloves by Ahmed Chebib (‘Chebib’), as were the other co-offenders. At the Furlan Club, the four offenders waited for the staff to commence leaving. As they began to leave, two staff members and a security guard were confronted in the venue car park, forced to the ground and their hands tied behind their backs. Whilst doing so, one of the offenders struck a 62 year old staff member to the forehead with a firearm. The staff members were then forced back into the gaming venue at gunpoint. Inside the Furlan Club the respondent and others managed the staff whilst stealing cash from the gaming machine coin canisters and cashiers’ draws. An Apple iPhone and other items were also stolen from one of the staff members. The total amount stolen was $43,565. The incident was captured on CCTV footage. It formed the subject of charge 1.
The second incident took place on 13 July 2012 at the Furlan Club. After Mohammed Elrajab (‘Elrajab’) conducted surveillance on the premises during the day, the respondent and three co-offenders attended the Furlan Club in the evening. The offenders were armed; the respondent in particular was armed with knuckledusters and a rifle. They were concealed in balaclavas and gloves. Three offenders, including the respondent, took control of the staff and patrons. Another parked his car and subsequently entered the venue. The offenders stole cash from the gaming cashier and two iPhones belonging to staff members, totalling $8,863. The incident was captured on CCTV footage. This constituted the subject of charge 2.
The third incident took place on 15 September 2012 at the Manningham Club. After Elrajab undertook reconnaissance on the premises during the day, the respondent and three co-offenders attended the club in the afternoon. The respondent was armed with a rifle. The offenders entered the gaming area, one of the respondent’s co-offenders having smashed the automatic door release. The patrons were told to get on the ground and threatened with being shot. The respondent held the barrel of a rifle against the back of one patron’s head and threatened to blow his head off. The offenders stole a total of $5,940 in cash from the cashier’s draws. Damage to the premises was done in the sum of approximately $7,280. The incident was captured on CCTV footage. This constituted the subject of charge 3.
The fourth incident took place on 16 September 2012 in Campbellfield. The respondent met three others and smoked cannabis with them, before entering an industrial estate. The respondent and a co-offender found several large panes of thick glass leaning against the rear of a factory on the estate. The respondent and his co-offender broke a number of those panes of glass. The damage caused totalled $5,000. This constituted the subject of charge 4.
The fifth incident occurred on 26 September 2012 at a milk bar in Broadmeadows. The respondent and another offender entered the milk bar, armed with a silver imitation semi-automatic handgun and a large solid bamboo stick respectively. The respondent had covered his face with a piece of material whilst his co-offender wore a baseball cap and a hooded jumper with the hood over his head. The respondent pulled down the blind, reached over the counter and started taking notes from the till. Upon the attendant attempting to stop the respondent, the respondent pointed the imitation handgun directly in her face, with his finger on the trigger, and threatened to shoot her if she did not allow him to take the money. The respondent then drove away in his co-offender’s vehicle. The stolen cash totalled around $400. The incident was captured on CCTV footage. This constituted the subject of charge 5.
The sixth incident occurred on 12 October 2012 in Coburg North. The respondent was with one of his co-accused, Mohammed Abdou (‘Abdou’), and three unknown men. Two of the men in the group accosted a woman walking home with her husband. When the first victim refused to hand over her bag, one of the men grabbed it whilst another pushed her to the ground and took her mobile phone. Meanwhile, the respondent, along with the two other men, confronted the victim’s husband. The respondent produced a small knife and demanded the second victim’s mobile phone and money. No items were ultimately stolen from the second victim. When the second victim noticed that his wife was on the ground and screaming, he attempted to help her, whereupon he was stopped by the respondent and the other offenders. Later that day, the respondent and Abdou attended at the Caltex Star Mart and used a stolen credit card from the respondent’s bag to purchase two packets of cigarettes for $36. This incident encompassed charges 6, 7 and 8.
The seventh incident occurred on 13 October 2012 in Brunswick. The respondent and another co-offender confronted a man riding on a bicycle. The offenders ran towards him and pulled him off his cycle. The respondent’s co-offender stood over him and produced a taser. The victim was fearful and punched the respondent to the face. Both offenders fled the scene. This consisted in the subject of charge 9.
With respect to the summary offence, on 16 September 2012 the respondent and one of his co-offenders were questioned by police in respect of a shooting at a train. During a search of their vehicle, the respondent was found in possession of two pocket knives. He admitted to knowing that they were controlled weapons and that he was unlicensed to carry them.
The gaming venue armed robberies (charges 1, 2 and 3) were well-planned and professionally executed. They ought to be characterised as serious ‘high-end’ robberies as opposed to street robberies. The offenders conducted reconnaissance of the premises and wore gloves and balaclavas to conceal their identities. Multiple weapons including firearms were used, with the respondent being personally armed with a firearm. Substantial quantities of money were stolen, especially in the incident the subject of charge 1. Many of the offences also involved acts of violence and threatened violence. There was little empathy shown for the victims. The offending also took place over a number of months, permitting the respondent time to reconsider and desist from such activity.
The respondent was arrested on 25 October 2012. He was in custody between 25 October 2012 and 7 November 2012 and again on 14 November to 16 November. There was a delay of over 2 years in bringing the matter to the County Court through no fault of the respondent.
The respondent’s five co-offenders were also sentenced by the same judge. Although the principle of parity is not applicable to a Director’s appeal, the Director submits that the sentence imposed upon each co-offender provides some guide as to the inadequacy of the sentence that was imposed on the respondent. The co-offenders were sentenced as follows:
(a) Erik Lahteenmaa (also known as ‘Latima’) (aged 25 at the time of the offending) pleaded guilty to one charge of armed robbery and was sentenced to a community corrections order of two years’ duration.[3]
[3]DPP v Lahteenmaa [2013] VCC 1529.
(b) Mahmoud Halabi (aged 18 at the time of the offending) pleaded guilty to one charge of armed robbery and was sentenced to a three year youth justice centre order.[4]
[4]DPP v Halabi [2013] VCC 1370.
(c) Elrajab (aged 19 at the time of the offending) pleaded guilty to two charges of armed robbery, one charge of attempted armed robbery and one charge of criminal damage. He was sentenced to five years and six months’ imprisonment with a minimum term of four years and six months to be served before becoming eligible for parole.[5]
(d) Abdou (aged between 19 and 20 at the time of the offending) pleaded guilty to one charge of attempted armed robbery, four charges of armed robbery, one charge of criminal damage and one charge of obtaining property by deception. He was sentenced to four years and four months’ imprisonment and, subsequently, a community corrections order of four years’ duration.[6]
(e) Chebib (aged between 19 and 20 at the time of the offending) pleaded guilty to four charges of armed robbery and one charge of criminal damage. He was sentenced to eight years’ imprisonment with a minimum term of six years to be served before becoming eligible for parole.[7]
[5]DPP v Elrajab [2014] VCC 1185.
[6]DPP v Abdou [2015] VCC 330.
[7]Ibid.
Director’s submissions
Under ground 1, the Director submits that the sentencing judge failed to confine the application of the principles enunciated in CNK to charges 1 and 2 only. This, it is submitted, led to general deterrence being erroneously excluded as a sentencing consideration relevant to charges 3–9 and the summary offence.
Under ground 2, the Director submits that a sentence confining the respondent for three years, whether in youth justice detention or in an adult prison was manifestly inadequate. The Director submits that the sentencing judge gave inadequate weight or excessive regard to the following matters.
First, it is submitted that as the nature of the offence of armed robbery is serious, deterrence and protection of the community are important sentencing objectives that should have received more prominence in the sentencing calculus. The sentencing judge was said to have given no, or inadequate, weight to considerations of punishment, denunciation, protection of the community and deterrence, both specific and general. Second, although the Director accepts that, applying CNK, general deterrence was not a relevant consideration with respect to charges 1 and 2, the judge failed to treat general deterrence as a relevant sentencing consideration with respect to the remaining charges.
Third, the Director points to a number of features of the respondent’s conduct said to characterise the conduct as objectively grave. These include the number of incidents, the offences being in company, their well-planned and professionally-executed nature, the use of multiple weapons, including firearms, the infliction of violence and threats of violence, the consequent harm caused to the victims, and the substantial quantity of money stolen.
Fourth, the Director, citing Azzopardi v The Queen[8] and DPP v Lawrence,[9] submits that the respondent’s youth was given too much emphasis as a mitigating factor.
[8](2011) 35 VR 43 (‘Azzopardi’).
[9](2004) 10 VR 125.
Fifth, the Director submits that the sentence imposed on the respondent cannot be justified when regard is had to the sentences imposed on his co-offenders, those sentences providing ‘yardsticks’ for an appropriate sentence for the respondent.
Respondent’s submissions
Under ground 1 the respondent submits that the judge did treat general deterrence as a sentencing consideration relevant to all charges save 1 and 2. The Director, it is said, attributes an unlikely meaning to the passage in which the judge dealt with CNK. No submission had been made on the plea that CNK applied to all charges faced by the respondent. On the contrary, defence counsel had repeatedly stated that he relied on CNK only in respect of charges 1 and 2. The respondent submits that the sentencing judge’s comments, properly understood, did not countenance the application of CNK to any charges beyond charges 1 and 2.
The respondent relies on the s 6AAA declaration made by the sentencing judge. The notional head sentence of five years’ imprisonment that the sentencing judge would have imposed had the respondent pleaded not guilty reflects the fact that he considered general deterrence relevant to charges 3–9. This is particularly salient given that the sentencing judge did not regard specific deterrence as a significant factor in sentencing the respondent.[10] He submits no specific error has been demonstrated. Alternatively, should specific error be made out, the respondent relies upon DPP v Chatterton[11] to argue that the original sentence must be manifestly inadequate before the Court may intervene on a Director’s appeal.
[10]Reasons [71].
[11][2014] VSCA 1, [82] (‘Chatterton’).
Under ground 2 the respondent submits that the sentence imposed was within the range reasonably open to him. He relies on the enunciation of the principles concerning youthful offending in R v Mills,[12] Azzopardi,[13] DPP v McCloy[14] and R v Osenkowski.[15] The principle governing the sentencing of youthful offenders, it is submitted, places significant weight on the fact of the offender’s immaturity and promotes the offender’s rehabilitation. It operates to mitigate the need for a sentence that would otherwise reflect the gravity of an offender’s conduct and the extent of his moral culpability. These considerations are not extinguished because the offending is particularly grave.
[12][1998] 4 VR 235.
[13](2011) 35 VR 43, [34]–[35].
[14][2006] VSCA 99, [60]. The respondent also relies on R v Hatfield [2004] VSCA 195, [11]. In that case, Chernov JA (Vincent JA and Gillard AJA agreeing) observed that the extent to which youth is a mitigating consideration depends on the circumstances of the case.
[15](1982) 30 SASR 212, 212–13.
The respondent submits that the evidence before the sentencing judge showed that he was a young, immature and impressionable young man, who experienced pressure to conform. He contends that he had been introduced to drugs and crime by his older workmates at Majestic Plumbing, who had established a pattern of offending before he joined the group. He notes that each of the offences he committed was in the company of an older co-offender. It is submitted that it was necessary to take into account the substantive reality that the respondent had the psychological profile of a child.
The respondent further submits that, to the extent that the Director relies upon the imposition of disparate sentences on his co-offenders, the disparity is a product of the sentencing judge’s careful discrimination between the respondent and his co-accused based on their age, character, role, and the material before the Court concerning their rehabilitation.
Finally, the respondent contends that, if his sentence is found to be erroneously low, the Court ought to exercise its residual discretion to dismiss the appeal.[16] Relying upon DPP v Karazisis,[17] he argues that rehabilitation, particularly in the case of young offenders, is of great significance in serving to enliven the discretion. His ongoing efforts at rehabilitation, it is submitted, merit the exercise of the Court’s discretion.
[16]DPP v Karazisis (2010) 31 VR 634, 657–8 [100] (‘Karazisis’).
[17]Ibid 659–60 [111]–[114].
Analysis
Turning first to the ground which asserts specific error, we entertain reservations as to the correctness of the respondent’s submission, which draws upon certain observations in Chatterton, that the Director can never succeed on a ground that alleges specific error unless it is also shown that the sentence is manifestly inadequate.
As with a prisoner’s appeal, a Director’s appeal is governed by the principles of appellate review set out in House v The King.[18] Although manifest inadequacy is a ground invariably relied upon, a complaint of specific error is not infrequently also relied upon in Crown appeals.[19] As the author in Fox & Freiberg’s Sentencing states:
A finding that a sentence is manifestly or demonstrably lenient becomes a threshold question that serves to invoke the court’s jurisdiction in the absence of an allegation of specific error.[20]
[18](1936) 55 CLR 499. See also Dinsdale v The Queen (2000) 202 CLR 321.
[19]See, eg, DPP (Cth) v Estrada [2015] VSCA 22; DPP (Cth) v Peng [2014] VSCA 128; DPP v Saltmarsh [2013] VSCA 290; DPP (Cth) v Coory [2011] VSCA 316; DPP v HPW [2011] VSCA 88.
[20]Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 999.
In DPP v Arvanitidis,[21] Redlich JA, with whom Buchanan and Nettle JJA agreed,[22] citing R v Clarke,[23] said that ‘specific errors of fact or law made by the sentencing judge … should generally be the subject of separate grounds.’[24] In R v Clarke,[25] this Court had elucidated the principles applicable to Crown appeals. Charles JA, with whom Winneke P and Hayne JA agreed,[26] relevantly said:
A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.[27]
[21][2008] VSCA 189.
[22]Ibid [2] (Buchanan JA), [10] (Nettle JA).
[23][1996] 2 VR 520, 522 (Charles JA).
[24][2008] VSCA 189, [18].
[25][1996] 2 VR 520.
[26]Ibid 524.
[27]Ibid 522 (citations omitted).
To uphold the submission that the Director must establish the manifest inadequacy of the sentence would require a curious construction of s 289 of the Criminal Procedure Act2009 (‘CPA’) which now governs a Crown appeal. It provides that this Court may allow an appeal where error is shown and the Court is of the view that a different sentence should be imposed. This mirrors the language of a prisoner’s appeal in s 281 of the CPA where it is well settled that this Court’s intervention is not restricted to cases where the sentence is shown to be manifestly excessive. It is unnecessary to express any concluded view on this aspect of the respondent’s submission as we are unpersuaded by the Director’s submission that his Honour erred in the specific manner alleged.
The Director submits that the sentencing judge wrongly applied the principle enunciated in CNK to charges 3 to 8. In CNK, the Court held that general deterrence was excluded from consideration in the sentencing of children in accordance with s 362(1) of the Children, Youth and Families Act 2005. It said:
[T]he unambiguous command of s 362(1) is that no greater sentence should be imposed on the child than the nature and circumstances of the child’s offending require. It would, in our view, be wholly inconsistent with this intention were the sentencing court to be obliged — where necessary — to impose a heavier sentence, not because of any aspect of the child’s offending or personal circumstances but because of the need to deter others from engaging in similar conduct.[28]
[28](2011) 32 VR 641, 645 [13].
In emphasising that general deterrence is to be excluded in the sentencing of child offenders, CNK does not affect the allied and well established principle that general deterrence ought to be moderated as a sentencing consideration in respect of offending committed by a youthful offender, consonant with the policy discussed in R v Mills[29] and applied in Azzopardi. Redlich JA, with whom Coghlan and Macaulay AJJA agreed,[30] said:
[29][1998] 4 VR 235, 241.
[30]Azzopardi (2011) 35 VR 43, 70 [92] (Coghlan AJA), 70 [93] (Macaulay AJA).
There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. First, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
…
Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.
…
In the case of R v Mills, this [C]ourt stated the following general propositions about sentencing youthful offenders as correct:
i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)
…
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[31]
[31]Ibid 53–4 [34]–[35], 55 [37], 57 [44] (citations omitted).
These propositions have a particular relevance where the offender becomes an adult during the course of his or her offending. In his reasons for sentence, the sentencing judge undertook to apply the principles relating to youthful offenders. He stated:
I must take into account such matters as deterrence, although with respect to general deterrence of course I have had regard to the submissions of [the prosecutor] to which I have referred, but ultimately I am persuaded that the view of the Court of Appeal with respect to general deterrence as set out in the case of CNK v The Queen have applicability to you and your circumstances in preference to the submissions made by [the prosecutor].[32]
[32]Reasons [64] (citations omitted).
On a proper reading of these remarks no error of principle is revealed. The judge took the prosecutor to have submitted that the principle in CNK ceases to have any relevance once the offender has turned 18 and that thereafter general deterrence is ‘an important sentencing consideration’ in respect of the offending. The prosecutor also emphasised that the offending was too serious for the respondent not to serve a sentence in an adult jurisdiction. The judge referred to these submissions by the prosecutor immediately prior to the impugned paragraph of his sentencing remarks.[33]
[33]Ibid [63].
The judge’s stated preference for the principles in CNK reflected his understanding that general deterrence, while relevant to all charges except for charges 1 and 2, was to be given less weight in the case of youthful offenders, including those who become adults during the course of their offending. Such an understanding is evident from the judge’s subsequent recitation of the principles in Azzopardi.[34] This conclusion is consistent with the content of the respondent’s counsel’s plea. Defence counsel had submitted that, as the respondent was a child during part of the offending, general deterrence was to be disregarded in respect of charges 1 and 2, but not thereafter.[35]
[34]Ibid [65]–[69]. See above [35].
[35]With respect to the trial, the prosecution’s written case did not address the applicability of CNK at all. On the plea, the prosecutor took no issue with what defence counsel had submitted.
The specific error alleged under cover of ground 1 is not made out.
Turning to ground 2, an assertion of a ground of appeal alleging manifest inadequacy requires the Director to show first that the sentence is clearly or wholly outside the reasonable range open to the primary judge in the particular circumstances of the offence and the offender.[36] In considering whether the sentencing discretion miscarried, the court will be slow to impute error to the sentencing judge. In Lowndes v The Queen,[37] the High Court said:
The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass [(1993) 72 A Crim R 561] and R v Clarke [(1996) 2 VR 520]. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [House v The King (1936) 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[38]
[36]Karazisis (2010) 31 VR 634, 662–3 [127].
[37](1999) 195 CLR 665.
[38]Ibid 671–2 [15].
In R v Clarke,[39] this Court elucidated the principles applicable to Crown appeals. Charles JA, with whom Winneke P and Hayne JA agreed,[40] relevantly said:
A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.[41]
[39](1996) 2 VR 520.
[40]Ibid 524.
[41]Ibid 522, citing R v Allpass (1993) 72 A Crim R 561, 562–3.
Where a sentencing judge is called upon to temper the more punitive aspects of sentencing policy with leniency in the case of a very youthful offender, the discretion which is committed to the sentencing judge assumes a particular significance. The sentencing judge must be afforded considerable latitude as the permissible range of sentences must be sufficiently broad to accommodate that leniency.
In the present case, the sentencing judge confronted a very challenging sentencing problem. The judge identified the various aggravating factors, noting the debilitating impact of the respondent’s offending upon the victims.[42] He had ‘absolutely no doubt [that] their ordeal was terrifying and it had significant repercussions in their lives from the point of view of their families, their friends, their workplace and their own psychological well-being’.[43] He recognised the gravity of the offending, being ‘serious examples of serious criminal offences’.[44] He took into account general deterrence in the manner discussed above.[45] Whilst the judge regarded specific deterrence as being of some significance, the absence of prior convictions and the respondent’s rehabilitative progress diminished its relevance.[46]
[42]Reasons [32]–[33].
[43]Ibid [32].
[44]Ibid [34]. See also at [77].
[45]See above [36]–[38].
[46]Reasons [71].
The judge was also presented with a constellation of mitigating factors. These included the plea of guilty made at an early stage of pre-committal,[47] which the judge accepted as an indication of remorse,[48] and the respondent’s absence of prior convictions or subsequent offending.[49] He also considered the respondent’s personal circumstances, in particular his immaturity, limited intellect and social skills and the continuing support of his family, with whom he resided in a secure environment.[50] He took into account the respondent’s lack of substance abuse prior to employment at Majestic Plumbing or since his release from remand.[51] He also found that the likelihood of the respondent’s reoffending was modest.[52] The judge also took account of the time previously spent by the respondent in custody between 25 October 2012 and 7 November 2012 and between 14 November 2012 to 16 November 2012.[53]
[47]Ibid [35]–[36], .
[48]Ibid [37].
[49]Ibid [53], [55], [60].
[50]Ibid [40], [47], [49], [56], [61].
[51]Ibid [44], [48]–[49], [58], [61].
[52]Ibid [72].
[53]Ibid [30]–[31].
The judge placed particular emphasis on the respondent’s rehabilitative progress, noting the following constructive steps taken by the respondent towards rehabilitation during the period of delay in sentencing.[54] Since the respondent was bailed on 9 November 2012, the respondent’s attendance at Youth Justice appointments and engagement with, and response to, community support services had been very positive.[55] The respondent had been assessed as appropriate, and had successfully completed, a brief intervention program in February 2013 as part of a Youth Crime Diversion and Early Intervention Prevention initiative. A mental health assessment by Orygen Youth Health found that he did not require further intervention.[56] The respondent was enrolled at the Royal Melbourne Institute of Technology, University School of Engineering TAFE in Certificate III plumbing, and at the time of sentencing, was in the second year of his apprenticeship.[57] As counsel for the respondent submitted on the appeal, and as the Director conceded during oral argument, the respondent has continued to make rehabilitative progress. He has eschewed further substance abuse and continued with his studies and employment with a view to becoming a licensed plumber.
[54]See Samac v The Queen [2011] VSCA 171, [66].
[55]Reasons [56]. See also at [61].
[56]Ibid [57].
[57]Ibid [58].
His Honour also placed considerable weight on a psychological assessment of the respondent undertaken by Mr Ian Joblin dated 28 July 2014 (‘Joblin report’) and the pre-sentence report assessing the respondent’s suitability for a youth justice centre order dated 20 August 2014 (‘pre-sentence report’). It was noted in the Joblin report that the respondent reported using alcohol and cannabis during the period of the offending. This included smoking cannabis up to eight or nine times a day.[58] Prior to the offences the subject of the respondent’s charges, he had no history of attention from the police.[59] The judge accepted the respondent’s self-reported initial refusal to participate in criminal activities which gave way to the psychological pressure he experienced to conform in the context of his limited intellect and social skills.[60] He regarded as material the unusual social situation in which the respondent found himself at Majestic Plumbing.[61] Finally, he took into account Mr Joblin’s view that it was highly unlikely that the respondent would be involved in such criminal activity again.[62]
[58]Ibid [44], [48].
[59]Ibid [45].
[60]Ibid [46]–[47].
[61]Ibid [48].
[62]Ibid [49].
His Honour referred to the contents of the pre-sentence report. The respondent’s use of cannabis during each offence and the negative peer associations and poor decision-making with minimal pre-thought he demonstrated were noted.[63] He also noted the remorse expressed in some detail by the respondent in that report.[64] The conclusion reached in the pre-sentence report was that a youth justice detention order was appropriate in light of the respondent’s age, immaturity, impressionability and reasonable prospects of rehabilitation. This conclusion significantly informed the judge’s finding that the respondent’s chances of rehabilitation were ‘reasonably good’.[65]
[63]Ibid [50].
[64]Ibid [51].
[65]Ibid [56]. See also at [59].
There were a number of features that distinguished the respondent from some or all of his co-offenders, accounting for the disparity between the respondent’s sentence and the sentences imposed on his co-offenders. The judge took into account the fact that the respondent was the youngest of the offenders, having committed the offences the subjects of charges 1 and 2 when he was 17 and the remaining matters within two months of his turning 18.[66] The respondent’s drug use was restricted relative to his co-offenders; he used cannabis, unlike his co-offenders, who used methamphetamine or ice.[67] He had pleaded guilty at the earliest opportunity and evinced clear remorse.[68] The absence of prior or subsequent offending by the respondent was also of relevance.[69] As we have said, of especial significance to the judge was the respondent’s rehabilitative progress in the delay prior to his sentencing.[70] Moreover, it was not in dispute that the respondent was not the ringleader of the offending committed in company; instead, the ringleaders were said to be Chebib and Abdou. As the Director conceded, there was no evidence before the sentencing judge as to the respondent’s personal degree of involvement in the planning of the offences.
[66]Ibid [60].
[67]Ibid [44].
[68]Ibid [60].
[69]Ibid [60].
[70]Ibid [60]–[61].
The Director submitted that, of the co-offenders, Elrajab was most alike the respondent. As the judge recognised, there were a number of distinguishing factors between Elrajab and the respondent. Elrajab was older than the respondent, having committed his offences at 19 years of age,[71] a fact which bore upon the judge’s view that deterrence, and especially general deterrence, was ‘of considerable importance’.[72] The judge noted that, while Elrajab pleaded guilty, it was not at the earliest opportunity.[73] He also found that the catalyst for Elrajab’s offending was his use of methamphetamine.[74]
[71]DPP v Elrajab [2014] VCC 1185, [16].
[72]Ibid [26].
[73]Ibid [13].
[74]Ibid [19].
The sentencing judge was acutely aware of the countervailing gravity of the respondent’s offences; rather, the aggravating factors were at the forefront of his mind in describing this case as one of the more difficult sentencing exercises he had encountered.[75] Although the objective gravity of the respondent’s offending was of a high order, so were the mitigating factors competing for consideration. Undoubtedly the sentence imposed on the respondent was extremely lenient but the disposition which his Honour chose was designed to benefit both the respondent and the community. His Honour sought to maximise the likely prospect that the respondent, if kept out of an adult prison, could become a responsible member of the community. Having regard to the breadth of the discretion that must be reposed in the sentencing judge in the case of youthful offenders, the Director has not established that the sentence imposed was manifestly beyond a sound exercise of the sentencing discretion.
[75]Reasons [65], [85].
Ground 2 of the Director’s grounds of appeal is not made out.
Had the Director established that the sentence fell outside the range of sentences available, having regard to the respondent’s progress towards rehabilitation before and since his sentence, we would in any event have exercised the residual discretion to refrain from appellate intervention.
Conclusion
We would dismiss the appeal.
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