DPP v Green
[2020] VSCA 23
•20 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0006
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| TERRENCE JAMES GREEN | Respondent |
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| JUDGES: | MAXWELL P, PRIEST and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 February 2020 |
| DATE OF JUDGMENT: | 20 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 23 |
| JUDGMENT APPEALED FROM: | [2018] VCC 2162 (Judge Fox) |
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CRIMINAL LAW – Appeal – Sentence – DPP appeal – Respondent pleaded guilty to 21 charges, comprising armed robbery, attempted armed robbery, attempted kidnapping, being a prohibited person in possession of a firearm, theft and obtaining property by deception – Total effective sentence 11 years’ imprisonment with non-parole period of 8 years and 6 months – Whether individual sentences, cumulation and total effective sentence manifestly inadequate – Whether sentencing judge correctly gave effect to principle of totality – Serious offending – Respondent used firearm – Lengthy criminal history – Substantial factors in mitigation – Early plea of guilty – Some remorse – Dysfunctional family environment – Respondent subjected to appalling physical and sexual abuse by custody officers while in youth custody – Respondent developed Post Traumatic Stress Disorder – Respondent only recently disclosed abuse – Severe abuse had material causative role in offending – Respondent previously spent 9 months in custody without lawful justification – Total sentence not to crush respondent’s prospects of rehabilitation – Sentences lenient but not manifestly inadequate – Appeal dismissed – Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms K Judd QC, Director of Public Prosecutions with Ms B Goding | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr P Tehan QC with Mr G Barns | Patrick W Dwyer |
MAXWELL P
PRIEST JA
KAYE JA:
In October 2018, the respondent pleaded guilty to 21 charges on an indictment, together with a summary charge of committing an indictable offence on bail. The charges on the indictment comprised: five charges of armed robbery (charges 1, 2, 3, 5 and 9); two charges of attempted armed robbery (charges 6 and 11); two charges of attempted kidnapping (charges 7 and 8); one charge of being a prohibited person in possession of a firearm (charge 10); three charges of theft (charges 4, 12 and 21); and eight charges of obtaining property by deception (charges 13 to 20 inclusive).
After a plea made on his behalf, the respondent was sentenced to a total effective term of 11 years’ imprisonment, with a non-parole period of eight years and six months.[1] That sentence was constituted as follows:
[1]DPP v Green [2018] VCC 2162 (‘Reasons’).
| Charges on Indictment | Offence | Maximum | Sentence | Cumulation | |
| 1. | Armed robbery [Contrary to s 75A(1) Crimes Act 1958] | 25 years’ imprisonment | 54 months’ imprisonment | Base sentence | |
| 2. | Armed robbery [Contrary to s 75A(1) Crimes Act 1958] | 25 years’ imprisonment | 54 months’ imprisonment | 9 months cumulative | |
| 3. | Armed robbery [Contrary to s 75A(1) Crimes Act 1958] | 25 years’ imprisonment | 54 months’ imprisonment | 6 months cumulative | |
| 4. | Theft [Contrary to s 74(1) Crimes Act 1958] | 10 years’ imprisonment | 6 months’ imprisonment | ||
| 5. | Armed robbery [Contrary to s 75A(1) Crimes Act 1958] | 25 years’ imprisonment | 60 months’ imprisonment | 12 months cumulative | |
| 6. | Attempted armed robbery [Contrary to s 321M Crimes Act 1958] | 20 years’ imprisonment | 42 months’ imprisonment | 6 months cumulative | |
| 7. | Attempted kidnapping [Contrary to s 321M Crimes Act 1958] | 20 years’ imprisonment | 42 months’ imprisonment | 9 months cumulative | |
| 8. | Attempted kidnapping [Contrary to s 321M Crimes Act 1958] | 20 years’ imprisonment | 54 months’ imprisonment | 12 months cumulative | |
| 9. | Armed robbery [Contrary to s 75A(1) Crimes Act 1958] | 25 years’ imprisonment | 54 months’ imprisonment | 9 months cumulative | |
| 10. | Prohibited person in possession of a firearm [Contrary to s 5(1) Firearms Act 1996] | 1,200 penalty units or 10 years’ imprisonment | 12 months’ imprisonment | 3 months cumulative | |
| 11. | Attempted armed robbery [Contrary to s 321M Crimes Act 1958] | 20 years’ imprisonment | 54 months’ imprisonment | 9 months cumulative | |
| 12. | Theft [Contrary to s 74(1) Crimes Act 1958] | 10 years’ imprisonment | 9 months’ imprisonment | 3 months cumulative | |
| 13. | Obtaining property by deception [Contrary to s 81(1) Crimes Act 1958] | 10 years’ imprisonment | 2 months’ imprisonment | ||
| 14. | Obtaining property by deception [Contrary to s 81(1) Crimes Act 1958] | 10 years’ imprisonment | 2 months’ imprisonment | ||
| 15. | Obtaining property by deception [Contrary to s 81(1) Crimes Act 1958] | 10 years’ imprisonment | 2 months’ imprisonment | ||
| 16. | Obtaining property by deception [Contrary to s 81(1) Crimes Act 1958] | 10 years’ imprisonment | 2 months’ imprisonment | ||
| 17. | Obtaining property by deception [Contrary to s 81(1) Crimes Act 1958] | 10 years’ imprisonment | 2 months’ imprisonment | ||
| 18. | Obtaining property by deception [Contrary to s 81(1) Crimes Act 1958] | 10 years’ imprisonment | 2 months’ imprisonment | ||
| 19. | Obtaining property by deception [Contrary to s 81(1) Crimes Act 1958] | 10 years’ imprisonment | 2 months’ imprisonment | ||
| 20. | Obtaining property by deception [Contrary to s 81(1) Crimes Act 1958] | 10 years’ imprisonment | 2 months’ imprisonment | ||
| 21. | Theft [Contrary to s 74(1) Crimes Act 1958] | 10 years’ imprisonment | 12 months’ imprisonment | ||
| Summary Charge 33 | Committing an indictable offence on bail [Contrary to s 30B Bail Act 1977] | 30 penalty units or 3 months’ imprisonment | 2 months’ imprisonment | ||
| Total Effective Sentence: | 11 years’ imprisonment | ||||
| Non-Parole Period: | 8 years and 6 months | ||||
| (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: | 993 days | ||||
| Section 6AAA Sentencing Act 1991 declaration: | 14 years and 9 months’ imprisonment with a non-parole period of 12 years and 6 months | ||||
| Other relevant orders: · Compensation order in the aggregate sum of $8,823.55 · Forfeiture order | |||||
The Director of Public Prosecutions has appealed the sentence on the ground that the individual sentences, the orders for cumulation, and the total effective sentence are each manifestly inadequate.
Circumstances of offending
The offences were committed by the respondent during a seven and a half week period between 10 June and 2 August 2015. At the time of the offending the respondent, who was born on 6 February 1978, was 37 years of age. He was then on bail, having been granted bail on 16 May 2015 on a charge of possessing a drug of dependence.
Charge 1 — armed robbery (The Basin Bakery, 10 June 2015)
The offence, that was the subject of charge 1, was committed by the respondent in company with a co-offender, Ms Marlee Patel.
In the early morning of 10 June 2015, the respondent and Ms Patel drove to the premises of The Basin Bakery on Mountain Highway. At approximately 3.00 am, they entered the premises through the open front door. The respondent was wearing dark clothing and a beanie that had eye holes cut into it, and was carrying a sawn-off shotgun. After they entered the premises, the respondent told the baker and two apprentices to get onto their hands and knees, but they did not do so. The respondent approached the baker, pointed the shotgun at him, and said ‘You must have upset someone, that’s why I’m here’.
At the same time Ms Patel ran behind the bench in the bakery, told a staff member to get onto the ground, and taped his mouth with duct tape. The respondent asked the baker where the money and the safe were. He then escorted the staff members to the rear of the premises, while Ms Patel attempted to open the till. When she was unable to do so, the baker opened it. Ms Patel removed the banknotes that were in it. The respondent demanded that the baker open the safe, but the baker said that there was no money in it. The respondent then searched the staff lockers and removed mobile phones from them. Having told the staff to wait at the back of the store for at least five minutes, otherwise they would be shot, he and Ms Patel then departed the bakery. An estimated $516 was stolen in the course of the robbery.
Charge 2 — armed robbery (Zi Wei Yuan Chinese Restaurant, Malvern East, 15 June 2015)
On 15 June 2015, at approximately 9.45 pm, the respondent entered the Zi Wei Yuan Chinese Restaurant. He was holding a gun, and wearing dark clothing and a hood, where only his eyes could be seen. The respondent took hold of a customer, pointed the gun at him, and pushed him towards the kitchen.
The owner of the restaurant and his wife and daughter were in the kitchen. The owner saw the respondent try to reach for his daughter. He pushed her away, and stood in between her and the respondent in order to protect her. The owner’s wife could not understand what the respondent was saying, but she assumed he wanted money. Accordingly, she removed money from her wallet and money from the cash register. She put it in a plastic bag and handed it to the respondent, who then walked away. A customer in the restaurant emptied $15 from his pockets and gave it to the respondent. The respondent then told them that they were not to call the police, and he departed the premises. It is estimated the respondent stole approximately $300 from the wallet, and between $1000 and $1500 from the cash register.
Charge 3 — armed robbery (Bento Coming, Burwood, 15 June 2015)
On the same evening, the respondent then attended at the Bento Coming Restaurant on Burwood Highway. Before arriving there, he had refuelled his vehicle at a service station, where he was captured on CCTV.
At approximately 11.00 pm, the respondent entered the restaurant wearing a black beanie with a cloth covering his mouth and nose. He was also wearing a dark hooded jacket, black jeans and a black shoulder bag, and was holding a gun. After he entered the premises, he pointed the gun at the manager, and said ‘give me the money, give me the money’. The manager went to the front counter and opened the till, and the respondent followed her to the register. The respondent pointed the gun at the customers who were in the restaurant and told them not to do anything. They became frightened when the gun was pointed at them, and ran out of the restaurant, leaving their belongings behind.
The respondent removed the money that was in the register, and also a wallet from underneath the register drawer. He continued to search for money. He asked if there was any more, to which the manager of the premises responded ‘No’. The respondent looked at the manager, put his hands together as if he was praying, bowed to her, and said ‘Thank you’. He then walked out of the restaurant through the back door. It is estimated that he stole approximately $1100 to $1200 from the register, and a further $200 to $400 from the wallet.
Charge 4 — theft of petrol (BP Service Station, Box Hill, 23 June 2015)
On 23 June 2015, the respondent attended a BP Service Station in Box Hill. There he filled his vehicle with petrol, and then departed without paying.
Charge 5 — armed robbery (Gateway on Monash Hotel, Notting Hill, 23 June 2015 — rolled-up charge)
Charge 5 is a rolled-up charge. At approximately 10.05 pm on 23 June 2015, the respondent entered the Gateway on Monash Hotel in Notting Hill through the front door. He was wearing a balaclava and a cloth mask, and was carrying a sawn-off shotgun. He approached the front counter and demanded that the female staff member give him cash. The staff member removed $160 from the cash register and handed it to the respondent, who then demanded money from the safe. He was told there was no safe. The other female staff member, who was behind the counter, removed approximately $170 from the bar cash register and handed it to the respondent. He then entered the bar area and demanded money from a number of the patrons who were there. Four of the patrons handed over money, totalling $515. The respondent placed the money into the bag that he was carrying and left the hotel.
Charge 6 — attempted armed robbery (Dan Murphy’s, Vermont South, 26 June 2015)
At approximately 4.15 pm on 26 June 2015, the respondent attended the Dan Murphy’s bottle shop in Vermont South. He was wearing dark clothing, a dark coloured beanie, and dark sunglasses, and was carrying a sawn-off shotgun.
The respondent confronted staff who were in the unloading area, and demanded that they go inside. At that time he was holding the gun by cradling it in his left arm, with his right arm holding near the trigger. After the staff went inside the premises, the respondent stood in front of them and said ‘I’m just having a joke’, and asked them for a cigarette. He then said to a staff member ‘Come with me, open the safe’. The staff member replied that he could not do that, and that only managers could do so. The respondent then said ‘It’s a practical joke, can I have a clearance?’. The staff member responded that he did not find the matter humorous, and said that the incident was recorded on camera. The respondent then swung the muzzle of the gun at the staff member and said ‘You are not going to call the cops are you?’ to which the staff member responded ‘No, we are not going to do that’. The respondent put the shotgun in his bag, and walked off. As he departed the store, he could be seen waving goodbye.
Charge 7 — attempted kidnapping (Capital Radiology Medical Centre, Vermont South, 26 June 2015)
Within minutes of the attempted armed robbery at Dan Murphy’s, the respondent walked to the Capital Radiology Medical Centre, where he intended to make his getaway by attempting to kidnap Mr Steven Koonju, who had just dropped off his wife at the premises.
As Mr Koonju went to park his vehicle, the respondent stood at the driver’s side door and pointed his gun at him. The respondent began to yell at Mr Koonju, which caused him to freeze, as he did not know what to do. He noticed that the respondent seemed very agitated and appeared to be desperate to try to get into the vehicle. The respondent told Mr Koonju to open the door, and that he needed him to drop him up the road. Mr Koonju responded that he would not do so. The respondent then said ‘Open the door, if not I’m going to break the window’. He tried to open the rear passenger door behind him, but Mr Koonju managed to lock the doors. The respondent continued to yell at him, and Mr Koonju used his horn to attract the attention of passers-by. His wife then came out of the medical centre, and the respondent ran off, escaping by jumping over the front fence of the premises.
Charge 8 — attempted kidnapping (Vermont South, 26 June 2015)
Shortly after the failed attempt to kidnap Mr Koonju, the respondent ran to a nearby street, and sought to make his escape by attempting to kidnap Ms Burrell.
At the time of the offence, Ms Burrell was sitting in her vehicle in the garage of her house, waiting for her 13 year old daughter to exit the house. The respondent approached Ms Burrell’s vehicle carrying the sawn-off shotgun. He got into the vehicle, sat in the front passenger seat, and pointed the gun at Ms Burrell’s neck. He told her that he needed her to take him somewhere. At that point, Ms Burrell’s daughter came out of the house and into the garage. Ms Burrell called out to her ‘No!’, and she pushed the shotgun away from her, towards the front windscreen. With great presence of mind and courage, she pushed the respondent’s cheek to stun him, and pushed his shoulder area and upper arm.
During the struggle, the contents of the black duffle bag opened and fell onto the garage floor. The respondent was distracted, and appeared to forget about Ms Burrell. He got out of the vehicle and bent over picking up his belongings. Ms Burrell closed the passenger door, locked it, and reversed the vehicle out of the driveway. The respondent followed, walking towards the vehicle. Once he was out of the garage, Ms Burrell closed the garage door using her remote control, in order to prevent him from getting to her daughter. Ms Burrell then turned off her driveway and drove off. The respondent left the premises in the opposite direction. Ms Burrell returned to her home, picked up her daughter in the vehicle, and called the police for assistance.
Charge 9 — armed robbery (Australia Post Office, Ringwood East, 13 July 2015)
On 13 July 2015, at approximately 10.40 am, the respondent entered the Australia Post Office in Ringwood East. He was wearing a dark coloured beanie, and his face was partially obscured by a scarf. As he walked toward the attendant, he pulled out a gun from the left side of his jacket and pointed it at her, instructing her to ‘fill the bag and empty the till’. The respondent placed a shopping bag on the counter. The attendant began removing notes from the till and putting them in the bag. As she did so, the respondent jumped the counter to check the till for himself, while continuing to point the gun at the attendant.
After the attendant had emptied the till, the respondent asked her where the safe was. She led him to the rear of the store, with the gun still being aimed at her. She attempted to open the safe, but kept inserting the incorrect code because she was frightened. Eventually, she got the code correct on the third attempt. The respondent directed her to take the money from the safe. While she was doing so, the respondent apologised to her, saying ‘Sorry for this’. Eventually, the attendant removed the money from the safe and put it into the bag that the respondent was carrying. He required the attendant to check the drawers for more money, as he seemed disappointed with the amount that he had taken, repeatedly saying ‘Is that all?’. Ultimately, he departed the premises by jumping the front counter and walking out the front door. It is estimated that he stole $4,276 in the course of the armed robbery.
Charge 11 — attempted armed robbery (Ashwood Newsagency, 18 July 2015)
On 18 July 2015, at about 8.11 am, the respondent entered the Ashwood Newsagency on Warrigal Road, Ashwood. He was wearing a black balaclava, and was carrying a shotgun. At the time, Ms Xian Wu was working at the front of the shop. She heard a man’s voice behind her saying ‘Move’. When she turned around, the respondent was pointing the gun at her. He instructed her to move, and not to push the button. He then looked at the co-worker, Mr Neil Zhang, and said to him ‘Safe, safe’. Mr Zhang courageously grabbed the respondent and they began to fight. During the struggle, Mr Zhang sustained a cut to his hand, and the respondent dropped the weapon on the floor. Ms Wu quickly took possession of it and took it out to the back of the store. After a short struggle, the respondent ran out the door. Mr Zhang pursued him, and saw him getting into a vehicle, and driving off at a fast speed.
The police were then called. Mr Zhang provided to the police the CCTV footage, and the firearm which had been dropped by the respondent. The respondent’s possession of that firearm was the subject of charge 10 (being a prohibited person in possession of a firearm).
Charge 12 — theft (on or about 1 August 2015)
On the evening of 31 July 2015, Mr Victor Staggard arrived at his home in Mooroolbark. He went to bed. When he got up at about 3.20 am, he noticed that his wallet had been stolen. The charge on the indictment, to which the respondent pleaded guilty, alleged a theft of the credit card belonging to Mr Staggard.
Charges 13 to 20 — eight charges obtaining property by deception (1 August 2015)
After stealing Mr Staggard’s bankcard, the respondent, on 1 August 2015, proceeded to use it to make purchases at a number of different retail outlets.
At 1.09 am on that date, he used the card to purchase cigarettes and a sandwich at the 7-Eleven store in Mooroolbark to a value of $88.96 (charge 13). Eleven minutes later, at about 1.20 am, he used the bankcard to purchase four further packets of cigarettes using Mr Staggard’s bankcard at the Woolworths petrol store in Kilsyth, to a value of $79.96 (charge 14). Four minutes later, at 1.24 am, he used the bankcard to purchase cigarettes at the 7-Eleven store in Croydon East to a value of $87.96 (charge 15). At 3.16 am, using the bankcard, he purchased cigarettes at the Woolworths store to a value of $79.96 (charge 16). Twelve minutes later, at 3.28 am, he used the bankcard to purchase four packets of cigarettes and a blue pen at the BP Service Station in Blackburn to a value of $98.39 (charge 17). He then, at about 3.41 am, purchased four packets of cigarettes using the bankcard at the Coles Express in Blackburn. (Charge 18). At 4.02 am, he purchased two packets of cigarettes and a cigarette lighter using the bankcard from the 7-Eleven store in Blackburn South at a cost of $45.47 (charge 19). Finally, at 4.13 am, he purchased three packets of cigarettes together with a cigarette lighter, and novelty items, using the bankcard, at the Coles Express store in Surrey Hills to a value of $79.96 (charge 20).
Charge 21 — theft of motor vehicle (2 August 2015)
On the following day, 2 August 2015, the respondent was arrested by police at a service station at The Basin. Immediately before his arrest he was sitting in a Holden Cruz sedan vehicle, which had been stolen from the Thrifty Car Rental Office in Bayswater between 24 and 25 July 2015.
After his arrest, the respondent was interviewed by police. He denied committing the aggravated burglary on Mr Staggard’s premises, but admitted stealing number plates from a car dealership, which he subsequently fixed to the Holden Cruz. He denied stealing the vehicle, but admitted taking possession of it a couple of days earlier, knowing that it was stolen. He denied any involvement in the armed robberies.
Respondent’s previous criminal history
The respondent has a substantial criminal history, commencing in 1995. The offences in respect of which the respondent has been convicted include armed robbery, burglary, theft, going equipped to steal and obtaining property by deception. On twelve separate occasions he has come before the courts in respect of a total of approximately 82 charges of burglary.
Significantly, the respondent has also been dealt with, by the courts, on three separate occasions for the offence of armed robbery. In 2001, he was sentenced by the Supreme Court of Western Australia to a term of imprisonment of six years on a charge of armed robbery. On 12 May 2004, he was sentenced by the County Court of Victoria, on two charges of armed robbery, to a total effective sentence of three years’ imprisonment, with a non-parole period of eighteen months. Subsequently, on 9 August 2007, he was sentenced, again by the County Court, on three further charges of armed robbery, to a total effective term of imprisonment of five years, with a non-parole period of three years.
It is evident that during the two decades that preceded the offending in this case the respondent had been engaged almost continually in offending. During that period he had spent a significant part of his life in custody.
The respondent’s background
The respondent comes from a large family. His father had five children by a separate relationship, and his mother had three further children with him. The respondent had a difficult relationship with his father. His education was interrupted, and he finished school in Year 10. After leaving school he was engaged in a number of different forms of employment, principally in sanding timber floors, in cabinet shops, and as a painter. However, his work history was rather sporadic, and the longest period of time that he spent in any employment was two years.
In 1991, when the respondent was 13 years of age, his father was sentenced to a term of imprisonment. At that time the respondent’s family life had become quite dysfunctional and disrupted. After his father’s incarceration, the respondent began engaging in shoplifting and drinking alcohol. When he was 15 years of age, he started to spend time at the home of one of his close friends. His friend’s mother, who was separated from her husband, initiated and engaged in sexual relations with the respondent when his friend was not present. Subsequently, the police became involved when his friend’s mother made an allegation to the police that the respondent had raped her, an allegation which he repudiated.
In 1993, the respondent was remanded in youth custody in Turana, on a charge of car theft. During that period of custody, and subsequent periods of custody, the respondent was subjected to substantial physical and sexual abuse which, it would appear, had a profound and lasting effect on him. He first revealed that abuse some time later in his life, and civil proceedings were commenced on his behalf claiming damages in respect of the abuse and neglect to which he had been subjected while a resident at Turana and the Melbourne Juvenile Justice Centre from 1993 to 1999.[2] His solicitors referred him to Dr S K Brann, a consultant psychiatrist, for an expert report in the context of those proceedings. In the course of examination by Dr Brann, the respondent described, in detail, the nature and extent of that abuse. Those details are set out in Dr Brann’s report. The sentencing judge was satisfied that the account given by the respondent to Dr Brann, of the abuse to which he had been subjected, was truthful and accurate.[3]
[2]On this application, the Court was advised that the proceeding had been resolved in favour of the respondent.
[3]Reasons [48].
In particular, when the respondent was first remanded in custody in Turana in 1993, he was repetitively physically and sexually assaulted by a particular custody officer. That officer engaged in forcible digital and penile anal rape and oral sex with the respondent on a large number of occasions. As a result of the rapes, the respondent suffered severe pain and anal bleeding. At the time he was too fearful and embarrassed to tell anyone about it. He still has physical injury as a result of the abuse. In addition, the officer, and another officer, indecently felt the respondent’s buttocks, penis and testicles while undertaking ‘pat down’ searches on numerous occasions.
While the respondent was in custody, he was on a number of occasions taken to isolation, where he was violently beaten by three officers. In addition, during strip searches, one of the officers usually fondled his scrotum and penis, and then, while he was held on the ground by two officers, he was kicked in the ribs, back and legs by other officers. The respondent also was physically assaulted by another resident, who was older than him, in custody. As a result of that assault, the respondent sustained a fractured nose and was taken to hospital.
During that time the respondent tried to escape from Turana on four occasions in order to flee the abuse.
Subsequently, the respondent became a resident of the Melbourne Juvenile Justice Centre. While he was a resident there, he was subjected to physical abuse, and he was also treated in a degrading and humiliating manner by the officers at the centre.
As a consequence of his experiences, the respondent attempted to commit suicide on four occasions. On one occasion, he tried to hang himself. On more than one occasion, he deliberately lacerated his arm while in custody, and he was taken to the Melbourne Assessment Prison Unit for psychological assessment. Subsequently, while he was en route to Perth, he prepared to shoot himself with a loaded gun, but in the end he could not bring himself to pull the trigger.
The respondent commenced drinking alcohol in his early teenage years. He first used amphetamines when he was about 17 years of age, and subsequently used drugs, including methylamphetamine, ecstasy and cocaine. At the time of the offending (June to August 2015), he was abusing both alcohol and methylamphetamine. The sentencing remarks of the judge, who sentenced the respondent for the three armed robberies in 2007, noted that by 2005 the respondent had developed a serious drug addiction.[4]
[4]R v McNally (Unreported, County Court of Victoria, Judge Hart, 9 August 2007) [15].
The respondent’s psychiatric assessment
In a detailed and thorough report, Dr Brann noted that the respondent had experienced regular intrusive thoughts about his childhood abuse, and that he also had flashbacks about that abuse two to three times each week. On occasions, he experienced reliving the abuse, particularly the sexual assault by the first prison officer. During the flashbacks he experienced somatic sensations, and he also has suffered panic attacks.
Dr Brann came to the conclusion that the respondent had developed a moderately severe post-traumatic stress disorder (‘PTSD’) with panic attacks and dissociative symptoms consequent upon the abuse and neglect that he experienced in youth custody. The respondent also had a diagnosis of multiple substance abuse. Dr Brann considered that it is probable that the behavioural problems and conduct issues engaged in by the respondent, before 1993, were triggered by the chaos and difficulties in the family unit after his father was jailed. In the circumstances of the dysfunctional family environment, the respondent had no emotional support or adequate parental guidance in his early years. As such, he was vulnerable to the development of PTSD, which he then sustained in the context of the numerous physical and sexual assaults perpetrated on him during his teenage years.
Dr Brann stated:
In my opinion Terrence’s enormous rage and lack of affect control is attributable to a pattern of reactions to sadistic physical and sexual assaults, in a vulnerable teenage phase of development, in a child who more probably than not was already psychologically vulnerable and had little if any adult role models to support and assist him with any kind of affect control.
The substance abuse, is also consistent with a very common pattern of behaviours in our culture and in the context of childhood abuse, where the substances are used for symptomatic relief and then lead to the complications of being part of the drug sub culture and part of a life of crime that is characterised by lack of control of behaviour and need to fund the procurement of substances and a lack of impulse control and lack of awareness of the consequences for self and others.
Dr Brann considered that the respondent required future treatment, including ongoing trauma related psychotherapy and counselling. She was of the view that the respondent’s prognosis was ‘by definition guarded’.
The respondent was also examined by Dr Charles Malpas, a clinical neuropsychologist, in November 2018, in order to ascertain whether the respondent had sustained an acquired brain injury due to some severe assaults to which he had been subjected while in custody. In short, Dr Malpas was unable to form a definitive opinion whether the respondent had sustained such an injury as a result of the assaults that he had sustained in 2012.
The plea
On the plea, counsel for the respondent conceded that the armed robberies and the attempted armed robberies were serious examples of offending. In mitigation, he relied, first, on the guilty pleas by the respondent. In particular, the pleas had a significant utilitarian effect, because the trial of the charges against the respondent would have taken a substantial amount of court time, and would have involved a number of the victims having to recount experiences that had been traumatic for them. It was also submitted that the guilty pleas were accompanied by remorse on behalf of the respondent.
Counsel relied on the diagnosis by Dr Brann that the respondent suffered from moderately severe PTSD. He conceded that that disorder did not entitle the respondent to mitigation of sentence in accordance with the principles stated by this Court in R v Verdins.[5] Counsel accepted that he was not in a position to establish a direct link between the offending and the sexual abuse to which the respondent had been subjected. However, he submitted that the abuse had had a significant psychological impact on the respondent, and therefore was of relevance in terms of the respondent’s background to the offending.
[5](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
Counsel further submitted that the respondent was motivated to rehabilitate himself, as evidenced by certificates as to rehabilitative programs undertaken by the respondent while on remand.
Reasons for sentence
In her reasons for sentence, the judge noted that the respondent’s counsel had correctly conceded that the offending was serious, and that it would have been frightening for the victims, as demonstrated by the two victim impact statements that had been tendered on the plea.[6]
[6]Reasons [35].
The judge noted that the offending was well planned, and that the respondent had been disguised, or partially disguised, at the time of the offences. He had pointed the firearm directly at a number of victims.[7]
[7]Ibid [38].
In mitigation, the judge found that, in the circumstances in which the proceedings had been conducted, the respondent’s pleas of guilty were made at the earliest reasonable opportunity. The pleas had been the result of substantial cooperation and negotiation between the parties, and they had significant utilitarian value. The pleas had spared a number of victims the trauma of giving evidence and reliving the events, and had saved the cost and expense of a lengthy criminal trial. The pleas also demonstrated an acceptance by the respondent of responsibility for his offending, and they were indicative of some remorse on behalf of the respondent. Accordingly, the judge considered that the pleas of guilty entitled the respondent to a ‘substantial sentencing discount’.[8]
[8]Ibid [29]–[30].
The judge outlined the respondent’s background history, including his history of drug and alcohol abuse, and the serious sexual and violent assaults to which the respondent had been subjected in Turana and the Melbourne Juvenile Justice system. Her Honour noted that the respondent had been struggling with a series of psychological symptoms for a long time.
Her Honour, having referred to Dr Brann’s report, noted that the respondent’s counsel did not rely on any of the principles stated by this Court in Verdins. Her Honour then stated:
That is not to say that the matters have no relevance in sentencing you. The matters in Dr Brann’s report provide some explanation for your criminal history and your continued offending. You went into custody as a teenager and were abused by people with power and authority who were entrusted with your care, in circumstances where you could not escape them. Your antisocial behaviour, anger, drug use and resulting criminality is explained in part by the violence and abuse committed against [sic] when you were a child, and by persons who wielded power and authority over you.[9]
[9]Ibid [51].
Her Honour considered that, in light of the respondent’s history of offending, specific deterrence was of relevance. She regarded the respondent’s prospects of rehabilitation as being ‘guarded at best’.[10] However, they may have been improved by the fact that he had now revealed to other people the sexual and physical abuse which he had suffered, so that further counselling and programs in which he might engage would be more productive and effective.[11] Her Honour also noted that the respondent had spent a significant period of time on remand, and that during that period he had endeavoured to use his time productively.[12]
[10]Ibid [52].
[11]Ibid [53].
[12]Ibid [54].
The judge noted that the armed robberies were serious examples of that offence. The respondent had used a sawn-off shotgun, and the robberies were committed ‘on soft targets and innocent victims going about their business’.[13] On a number of occasions, the respondent had pointed his gun at the victim, and his offending involved a degree of planning and disguise.[14] Accordingly, ‘[g]eneral deterrence, denunciation and just punishment’ were all relevant.[15] While s 16(3C) of the Sentencing Act 1991 displaced the presumption of concurrency, nevertheless the principle of totality was of importance. Her Honour considered that, in order to achieve a just sentence, it was necessary to moderate cumulation and prefer concurrency of sentences.
[13]Ibid [55].
[14]Ibid.
[15]Ibid [60].
Submissions
The Director submitted that the objective gravity of the offending, and the moral culpability of the respondent, was high having regard to a number of matters. The offending was planned. The respondent had disguised his appearance and was armed with a firearm. He had chosen ‘soft targets’ for the armed robberies. He pointed the firearm directly at victims (in charges 1, 2, 3, 7 , 8, 9 and 11). His conduct was intended to, and did, occasion significant fear to his victims. The victims of the offending included persons who were at their place of employment and patrons of the business, and the respondent took items of value from the staff and patrons. In addition, the victims, who were the subject of charges 7 and 8, were vulnerable because they were in their motor vehicles, and they had limited ability to protect themselves and others from the respondent. The victim in charge 1 had his mouth taped closed with duct tape, and the respondent physically struggled with the victims in charges 8 and 11. The respondent was a prohibited person in possession of the firearm. The offending only came to an end when he was dispossessed of the firearm by one of the victims.
The Director noted that the sentences, imposed in respect of the two attempted kidnapping charges, represented 17 per cent and 22 per cent respectively of the maximum sentence. The judge correctly characterised the armed robberies as being serious examples of that offence, but the sentences imposed by the judge failed to give sufficient weight to the objective gravity of the offences and the prescribed maximum sentence. In particular, counsel referred to the trauma that was occasioned to the victims as a consequence of the armed robberies, as evidenced by the two victim impact statements tendered on the plea.
The Director further noted that the sentence imposed in respect of charge 10 (being a prohibited person in possession of a firearm) represented only 10 per cent of the maximum penalty. That sentence was manifestly inadequate, since the respondent possessed the firearm for the purpose of engaging in serious criminal offending. Further, the sentences imposed in respect of the charges of theft and obtaining property by deception gave insufficient weight to the need for just punishment and deterrence, particularly in light of the respondent’s extensive criminal history. It was submitted that the judge’s description of the offending as being a ‘spree which lasted just shy of two months’[16] understated the extensive and protracted nature of the offending by the respondent. Further, in light of the respondent’s significant previous criminal history, which included sentences of imprisonment for armed robbery, the sentences failed to give adequate weight to specific deterrence and protection of the community.
[16]Ibid.
The Director contended that the respondent had only limited factors on which to rely in mitigation of the sentence. The respondent did not rely on the principle stated in Verdins. There was no evidence of remorse other than the pleas of guilty. The respondent was on bail at the time of the offending, and he first breached that bail by further offending in charge 1.
Finally, the Director submitted that the judge gave excessive weight to the principles of totality and proportionality, with the result that the sentences did not accurately reflect the gravity of the offending. The individual sentences imposed in respect of all the offences (save for the summary offence) demonstrated that the judge had, contrary to principle, significantly moderated the individual sentences, as well as directing only marginal cumulation.
In response, counsel for the respondent submitted that the sentences were reasonably open in the circumstances of the case. The judge acknowledged that the armed robberies were serious examples of the offence. Her Honour noted that they were committed on soft targets and innocent victims, that on a number of occasions the respondent pointed his gun at the victim, and that there was a degree of planning and disguise. The judge also regarded the two charges of attempted kidnapping as serious instances of that offending.
In addition, the judge referred to the fact that general deterrence, denunciation and just punishment were relevant sentencing factors. However, her Honour also correctly acknowledged that the principle of totality was relevant. In that respect, counsel noted that, on the plea, the prosecutor had submitted that the principles of totality and proportionality were applicable and had accepted that the judge had a difficult balancing exercise, because there were multiple charges and the respondent had previous convictions for armed robberies. The prosecutor had told the judge that the sentence therefore could not be ‘crushing’, but that it did have to reflect the gravity of the offending.
Counsel for the respondent further submitted that, contrary to the contention made by the Director, the respondent did have substantial factors to rely on in mitigation of sentence. The report of Dr Brann set out in detail the significant number of instances of serious sexual and physical abuse to which the respondent had been subjected at a young age. At the plea, the prosecutor accepted that the abuse was relevant to providing an explanation for the respondent’s offending history. Counsel for the respondent submitted that the abuse was clearly relevant, because it provided an explanation for the respondent’s extensive criminal history and his continued offending. In that way, he submitted, it reduced the respondent’s moral culpability for the offending.
Counsel further submitted that there was no basis to suggest that the judge was not cognisant of the prescribed statutory maximum sentences for each offence. The maximum sentence is, however, a yardstick, and it has to be balanced against other factors. Counsel submitted that, notwithstanding the contentions made by the Director, the judge fairly understood the gravity of the offending engaged in by the respondent. Counsel pointed out that a number of the offences occurred on the same day. The judge correctly applied the principle relating to the issues of cumulation and totality, namely, not to moderate the individual sentences, but to achieve totality by moderating the measure of cumulation.[17]
[17]DPP (Cth) v KMD [2015] VSCA 255, [95]–[96] (Maxwell P, Weinberg and Beach JJA); R v Lomax [1998] 1 VR 551, 563 (Ormiston JA).
Counsel noted that the judge correctly allowed a ‘substantial sentencing discount’ because the pleas of guilty were entered at the earliest available opportunity, they saved a number of victims from giving evidence, and they saved the cost and expense of a lengthy criminal trial.
Finally, counsel submitted that if the Court upheld the contention on behalf of the Director that the sentences were manifestly inadequate, nevertheless the Court should exercise the discretion to dismiss the appeal. In support of that submission, counsel relied on the following factors: the circumstances of the pleas of guilty; the sustained and serious level of physical and sexual abuse to which the respondent had been subjected as a child and teenager; the respondent had spent a significant period of time on remand and had used that time productively; the respondent had, in effect, been institutionalised, and with the present sentence, faces another significant period of imprisonment; and the respondent had spent a period of nine months in custody in Western Australia, which was later found to have been without proper cause.[18]
[18]Green v Prisoners Review Board [2014] WASC 324 (‘Green’).
Analysis and conclusion
In order to establish that the sentences imposed on the respondent were manifestly inadequate, the Director must demonstrate that those sentences were wholly outside the range of sentences reasonably open to the sentencing judge in the circumstances of the case. By its nature, that test is a stringent one, which is difficult to make out. It is insufficient if this Court were to conclude that it would have imposed higher sentences than those imposed by the sentencing judge. Rather, the Court must be persuaded that the sentences were wholly outside the range of sentences available, taking into account all the facts of the case, and applying appropriate sentencing principles, while bearing in mind that, as in any sentencing case, reasonable minds might differ, quite substantially, as to what is the appropriate sentence. In effect, the Director must demonstrate that the sentences, that are the subject of the appeal, were so inadequate as to bespeak error by the judge in the exercise of the sentencing discretion, notwithstanding that no specific error has been identified in the reasons for sentence by the judge.[19]
[19]DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA); DPP v Macarthur [2019] VSCA 71, [56]–[60] (Ferguson CJ, Kaye and Weinberg JJA).
Each of the offences for which the respondent was sentenced were, by their nature, serious, as reflected by the prescribed maximum sentence for those offences. The offending that constituted the five armed robberies, the two attempted armed robberies, and the two attempted kidnappings, had a number of serious aspects attaching to them. The armed robberies and the attempted armed robberies were not spontaneous, but had been pre-planned. The targets of each of those offences had been selected. The respondent attended at the premises disguised and carrying a weapon. He attended each of the premises (except in respect of charge 6) in a motor vehicle which, at the time of the offences, was parked in a position which enabled him to endeavour to make a ready escape.
The use by the respondent of a firearm was a matter of particular gravity. It was calculated to engender significant fear in the victims. The victim impact statements of the subjects of charges 1 and 9 graphically depict the significance and long-standing trauma and harm resulting from those offences. The circumstances of the two attempted kidnappings — and, in particular, that which was the subject of charge 8 — must have been terrifying for the victims. The targets of each of the armed robberies, and the attempted armed robberies, were vulnerable, and had no realistic opportunity of presenting any resistance or defence to the respondent. During the period of some 53 days, the respondent engaged in a course of dangerous and unlawful criminal conduct which only came to an end on his arrest on 2 August 2015.
In addition, as noted, the respondent had a long and significant criminal history. His offending included three significant cases of armed robbery, and a vast number of burglaries. The previous sentences of imprisonment had failed to deter him from re-offending on his release from custody. In those circumstances, ordinarily, the sentencing purposes of specific deterrence and protection of the community must be given significant weight. Based on the objective facts of his criminal history, and without more, the respondent might be regarded as an irremediable recidivist offender.
Thus, in the absence of pertinent mitigating circumstances, the offending by the respondent, in the present case, merited a substantial term of imprisonment. As the sentencing judge correctly recognised, the sentencing purposes of specific deterrence, protection of the community, general deterrence and denunciation all were entitled to substantial weight. In light of the significant number of offences for which the respondent fell to be sentenced, the serious aspects of those offences, and the respondent’s lengthy criminal history, the sentences imposed on the respondent were, unarguably, lenient. In the absence of cogent mitigating circumstances, the conclusion might be drawn that they were manifestly inadequate. The critical question, then, is whether the mitigating factors, on which the respondent relied, were of such weight in the sentencing synthesis that it might be concluded that the sentences imposed on the respondent were not wholly outside the range of sentences available in the circumstances of the case.
The first mitigating factor, relied on by the respondent, was his pleas of guilty to each of the charges on the indictment. The judge made a number of relevant findings in respect of those pleas. First, she held that the pleas of guilty to the indictment were made at the earliest reasonable opportunity. Secondly, her Honour held that the pleas had significant utilitarian value, having spared a number of victims the trauma of giving evidence, and saving the cost and expense of a lengthy criminal trial. Thirdly, her Honour accepted that the pleas demonstrated an acceptance of responsibility by the respondent for his offending, and were indicative of ‘some remorse’ on his behalf.[20]
[20]Reasons [30].
In Phillips v The Queen,[21] this Court observed that, in any case in which an offender pleads guilty, the utilitarian effect of the plea is a relevant mitigating factor, which must be reflected as a reduction in the sentence which might otherwise have been imposed on the offender. Further, the Court considered that the weight to be attributed to the plea, as a mitigating factor, may be more substantial where it has had a significant utilitarian effect taking into account the length and complexity of the potential trial that has been avoided by reason of the plea.[22]
[21](2012) 37 VR 594; [2012] VSCA 140 (‘Phillips’).
[22]Ibid 612–13 [64] (Redlich JA and Curtain AJA, with whom Maxwell P and Harper JA agreed).
Plainly, in the present case, the judge was correct in concluding that the pleas by the respondent had ‘significant utilitarian value’. Importantly, they spared the victims of the nine episodes which constituted, respectively, the five armed robberies, the two attempted armed robberies, and the two attempted kidnappings, from the traumatic ordeal of being obliged to recount the frightening circumstances of the offending in court. They also saved the cost and expense of a long trial, and contributed to the efficient administration of justice in this State.
Further, as the judge found, the pleas by the respondent reflected an acceptance of responsibility by him, and were attended by some remorse. As was recognised by Redlich JA and Curtain AJA in Phillips, where a judge is satisfied that a plea of guilty is attended by an acceptance of responsibility and remorse, that finding should be reflected ‘fully’ as a mitigating circumstance in the exercise of the sentencing discretion.[23]
[23]Ibid 614 [69].
For those reasons, as the judge recognised, the respondent was entitled to have his pleas of guilty taken into account, in the sentencing discretion, as a substantial mitigating factor.
The second, and the most significant, mitigating factor comprised the long-standing effects of the significant and traumatic sexual and physical abuse, and harsh and degrading conditions, to which the respondent had been subjected while in custody during his formative years as a teenager.
As we have noted, Dr Brann, in her report, described in some detail the circumstances of the respondent’s experiences in custody, and the abuse which had been perpetrated on him. On the plea, the prosecutor accepted the contents of her report as being factually truthful and correct, and her Honour was satisfied that the report was a true account of the experiences of the respondent. No challenge was made to that finding on this appeal. Nor has the Director challenged the conclusions formed by Dr Brann, and which were accepted by the judge, namely:
(1)The respondent had developed moderately severe PTSD with panic attacks and dissociative symptoms as a consequence of the abuse and circumstances he had experienced while in custody during his period of ward ship.
(2)The dysfunctional family environment, in which the respondent had grown up, had rendered him very vulnerable to the development of that disorder.
(3)The respondent’s conduct was attributable to his reactions to the innumerable sadistic sexual and physical assaults on him while in custody in the vulnerable teenage phase of his development. His substance abuse was consistent with his reaction to the trauma of that abuse, the respondent having resorted to illicit substances for symptomatic relief. As a consequence, he had become enmeshed in the drug sub-culture and a life of crime, characterised by lack of control and the need to fund the procurement of substances.
The findings by Dr Brann, which were accepted by the sentencing judge, were an important mitigating factor in the circumstances of the case. In recent decades, courts have become all too familiar with the appallingly harmful and destructive effects of sexual and physical abuse perpetrated on minors and young people by persons who are in authority or in a position of power over them. The long-standing and detrimental effects of that abuse have been demonstrated to be profound and, in many cases, permanent.
In Bugmy v The Queen,[24] the High Court considered the sentencing principles applicable to an Aboriginal man whose early years of background had been beset with alcohol abuse and violence. The plurality stated:
The Director’s submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[25]
[24](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[25]Ibid 594-5 [43]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Those principles apply with equal force to a case such as this, in which the respondent was subjected to significant abuse and degradation during the important formative years of his life. While, on the plea, and on this appeal, the respondent did not rely on his condition of PTSD as directly mitigating his culpability in the offending in the sense discussed in cases such as Verdins, nevertheless the principles outlined in Bugmy are relevant. In essence, in the present case, the respondent’s subjective culpability for his offending could not be realistically equated with that of a person who committed the same offences, but who had had the advantage of a normal, stable and regular home environment, and who had not been subjected to sexual and physical abuse of the kind experienced by the respondent while in custody. In that way, the respondent’s background constituted an important mitigating circumstance in the determination of the sentences.[26]
[26]DPP v Drake [2019] VSCA 293, [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); DPP v Heyfron [2019] VSCA 130, [57]–[58] (Priest, Kaye and T Forrest JJA).
In addition, and importantly, the abuse perpetrated on the respondent, and the conclusions by Dr Brann, were also relevant to an evaluation of the weight to be given to the respondent’s lengthy criminal history. In particular they explain, at least in part, the respondent’s pattern of repeat offending over a period of more than two decades.
In Veen v The Queen (No 2), Mason CJ, Brennan, Dawson and Toohey JJ outlined the relevance of an offender’s previous criminal history as follows:
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.[27]
[27]Veen v The Queen (No 2) (1988) 164 CLR 465, 477; [1988] HCA 14.
In the present case, considerations such as protection of the community, specific deterrence and general deterrence were of importance, in light of the respondent’s repeated criminal history. On the other hand, while the respondent’s criminal history was relevant to an evaluation of his moral culpability for the offending for which he was to be sentenced, the underlying causes of that previous offending, to a measurable extent, diminished the relevance of his criminal history as an indication of his moral culpability for the offending.
In that context, it is relevant to observe that this case was the first occasion upon which the respondent was to be sentenced after he had come to disclose the abuse suffered by him while in custody in Turana and the Melbourne Juvenile Justice Centre. Thus, none of the previous sentences imposed on him had taken into account, as a mitigating factor, the relationship between the abuse inflicted on the respondent and the offending behaviour for which he was sentenced.
Between October 2001 and his arrest on 2 August 2015, the respondent spent most of his time in prison, in Victoria and Western Australia. As a result of the sentence that has been imposed on him in the present case, he now faces a further lengthy term of imprisonment. Unless he is granted parole, he will not be released until 2026. By then he would have spent all but approximately 22 months in custody over a period of 25 years.
It is now evident that, during that period, the respondent spent some nine months in custody in Western Australia due to a cancellation of his parole which was later found to have been invalid by the Supreme Court of Western Australia in Green.[28] The judgment of Pritchard J, in that case, set out, in some detail, the history of the respondent’s incarceration. In short, he was arrested in Western Australia on a charge of armed robbery on 4 October 2001. On 4 December 2001, he was sentenced to six years’ imprisonment. Subsequently, he was granted parole as from 3 October 2003. On that date he was extradited to Victoria and placed in remand. During the following eleven years, he spent most of his time in Victoria in custody. During three brief periods of parole, he offended, his parole was cancelled, and he was sentenced to additional terms of imprisonment for his further offending. In the meantime, in August 2004, his parole in Western Australia was cancelled. When he was ultimately released from custody in Victoria on 26 January 2014, he was returned to custody in Western Australia to complete his sentence. Pritchard J found that the cancellation of the respondent’s parole in 2004 ‘lacked an evident and intelligible justification, was irrational, and so unreasonable that no reasonable person could have arrived at it’.[29] Accordingly, his Honour held that the decision involved jurisdictional error, and he granted relief by way of certiorari in relation to it.[30] As a consequence, the respondent was released from custody in Western Australia on 2 October 2014. At that time, he had thus spent nine months in custody without lawful justification.
[28][2014] WASC 324.
[29]Ibid [65].
[30]Ibid [65], [68].
Taken together those circumstances — the prospect that on completion of his sentence, the respondent would have spent almost the whole of a quarter of a century in custody, and the fact that he had served nine months in custody pursuant to an unlawful order of the Western Australian Parole Board — properly entitled the respondent to some moderation of the sentences that were imposed on him in the present case, particularly in light of the proven relationship between the respondent’s repeated offending behaviour and the effects of the appalling and traumatic abuse to which he had been subjected in his early years.
As the judge correctly acknowledged, the sentencing purposes of general deterrence, specific deterrence and protection of the community were relevant. However, as counsel for the respondent contended, if the total effective sentence of 11 years’ imprisonment is not sufficient to deter the respondent from further offending, it is difficult to conceive, in the circumstances, how a sentence of any longer term might achieve that objective.
Equally, while protection of the community was a significant factor in the sentencing synthesis, nevertheless the fact remains that the respondent must, at some time, complete whatever sentence was imposed on him. In those circumstances, it was in the interests of the community that the judge take into account, as her Honour appears to have, the respondent’s prospects of rehabilitation. Her Honour, understandably, regarded those prospects as being ‘guarded at best’, but she also noted that they may have been enhanced by the fact that the respondent has, finally, spoken about the sexual and physical abuse which he had suffered, and that he was then seeking legal redress in respect of it.[31]
[31]Reasons [52]–[53].
It was in the interests of the community that the sentences imposed on the respondent be such as to enhance, rather than undermine, his rehabilitation prospects. In view of the respondent’s history of repeated incarcerations, there was, in any event, a significant prospect that, by the completion of the further term of imprisonment imposed by the judge, he would have become institutionalised, so that his prospects of rehabilitation would thereby be compromised. Nevertheless, in the particular facts of this case, it was material that the total effective sentence, to be imposed on the respondent, not be such as to crush those prospects, with the consequence that, on release, the respondent readily return to his offending conduct.[32]
[32]Cf DPP v Stone [2003] VSCA 208, [20] (Charles JA, with whom Winneke ACJ and Eames JA agreed).
As discussed, the Director submitted that the individual sentences, and the orders for cumulation, were both inadequate. In support of that submission, the Director referred to the principle that the preferred method of giving effect to the principle of totality is to impose an appropriate term of imprisonment for each individual offence, and to tailor orders for cumulation and concurrency.[33] In this case, it was contended, each of the individual sentences (save for the sentence for the summary offence) demonstrated significant moderation, while, at the same time, there was substantial moderation of the degree of cumulation between them. Thus, it was submitted, the judge failed to comply with the prescribed principles for achieving totality.
[33]DPP v Grabovac [1998] 1 VR 664, 676–84 (Ormiston JA, with whom Winneke P and Hedigan AJA agreed).
In her reasons for sentence, the judge correctly acknowledged the principle relied on by the Director.[34] In particular, her Honour noted that, in order to satisfy the principle of totality, it was more appropriate to prefer concurrency and moderate cumulation, rather than to impose artificially inadequate sentences.
[34]Reasons [60].
Certainly, the individual sentences, and in particular those imposed in respect of the charges of armed robbery, attempted armed robbery, and attempted kidnapping, were lenient. However, taking into account, and giving proper weight to, the mitigating factors in this case, we are not persuaded that they were manifestly inadequate, or that they were the product of inappropriate moderation by the sentencing judge. At the risk of repetition, the appalling physical and sexual abuse, and humiliation and degradation, to which the respondent had been subjected during his formative teenage years had, on the evidence, a demonstrated causal relationship with the respondent’s offending, and with his drug addiction, which he sought to feed by resorting to that offending. As discussed, those circumstances constituted substantial mitigating factors.[35] In addition, as the judge found, the respondent’s pleas of guilty were a substantial mitigating factor. Taking those matters into account, we consider that each of the individual sentences imposed by the judge, while particularly lenient, did not fall wholly outside the range of sentences available to her Honour. Nor do they reflect that the judge impermissibly moderated those sentences in order to comply with the principle of totality.
[35]Cf R v McKee [2003] VSCA 16, [12]–[13] (Buchanan JA), [21] (Vincent JA); R v Fernando (1992) 76 A Crim R 58, 62–3 (Wood J); R v Koumis (2008) 18 VR 434, 437–8 [56]–[57]; [2008] VSCA 84 (Redlich, Kellam JJA and Osborn AJA); DPP v Terrick (2009) 24 VR 457, 470 [53]; [2009] VSCA 220 (Maxwell P, Redlich JA and Robson AJA).
The orders for cumulation, and concurrency, were quite lenient. However, bearing in mind the principle of totality, the mitigating factors to which we have referred, and the need to ensure that, in the end, the sentences allow some scope for the rehabilitation of the respondent on the completion of his sentence of imprisonment, we are not persuaded that the orders for cumulation, and concurrency, were manifestly inadequate. Nor are we persuaded that the total effective sentence, thus arrived at, was wholly outside the range of sentences available to the judge on the individual facts of the case.
Conclusion
For those reasons, the appeal must be dismissed.
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