DPP v Jefferson
[2003] VSCA 50
•30 April 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 11 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| TERRY ROBERT JEFFERSON |
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JUDGES: | CALLAWAY and BUCHANAN, JJ.A. and WARREN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 April 2003 | |
DATE OF JUDGMENT: | 30 April 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 50 | |
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Criminal law - Sentence - Crown appeal - Armed robbery - Sentence of 18 months' imprisonment with 12 months suspended manifestly inadequate - Like sentence imposed on co-offender warranted by different personal circumstances.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr W.H. Morgan-Payler, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr D.J. Ross, Q.C. and Mr W. Doogue | Doogue & O’Brien |
CALLAWAY, J.A.:
I shall ask Buchanan, J.A. to deliver the first judgment in this appeal.
BUCHANAN, J.A.:
The respondent is 45 years old. He is married with four children, but has been separated from his family for some time. The respondent met Heidy Langdown, his co-offender, in mid 2000. She is now 37 years old. At the time of the commission of the offences for which the respondent was sentenced he was living with Ms Langdown in his car and in a caravan park.
The offences took place over a period of nine days and involved attacks upon two 7 Eleven stores and two service stations. The first robbery took place on 24 August 2000 and the other two robberies and an attempted robbery occurred on 1 September 2000. In each case Ms Langdown entered the premises late at night or in the early hours of the morning and threatened shop attendants, on one occasion with a syringe filled with red paint and on another occasion with an imitation firearm. The respondent drove Ms Langdown to the scene of each robbery, waited for her outside the premises and received the proceeds of the crime. On each occasion the robberies produced a few hundred dollars and items such as packets of cigarettes and magazines. The last attempted robbery failed when the shop attendant activated what is called a panic button.
On 9 December 2002 the respondent was arraigned on a presentment containing three counts of armed robbery (counts 1, 3 and 5), three counts of handling stolen goods as alternatives to the robbery counts and one count of attempted armed robbery (count 7). The respondent pleaded not guilty to all the counts save one count of handling stolen goods to which he pleaded guilty. At the conclusion of the trial the respondent was convicted on the counts of armed robbery and the count of attempted armed robbery. After hearing a plea the trial judge sentenced the respondent to a term of 12 months' imprisonment on each of counts 1, 3 and 5 and to a term of six months' imprisonment on count 7. It was directed that the sentence on count 7 be served cumulatively on the sentence imposed in respect of count 1, producing a total effective sentence of 18 months' imprisonment. Twelve months of that term was suspended for a period of 12 months.
The Director of Public Prosecutions has appealed against the sentence on the ground that the individual sentences and the total effective sentence are manifestly inadequate. As particulars of that ground the Director contends that the sentence failed to adequately reflect the gravity of the offences, and the sentencing judge failed to take into account or sufficiently take into account the aspect of general deterrence and gave too much weight to factors going to mitigation.
The respondent has 16 prior convictions from seven court appearances, principally for drink-driving offences, but also including convictions for burglary, housebreaking and theft. The penalties for these crimes were generally fines, but the respondent was also sentenced to a community-based order and a term of imprisonment for one of his driving episodes.
In the course of the plea a report from a forensic psychologist was tendered. It appears from the report that the respondent’s parents separated when he was 10 years old and at the age of 14 years he became a ward of the State and was placed in a boys’ home. The respondent left school in Form IV and thereafter worked as a storeman, as a truck driver and in a St Vincent de Paul shop. As his prior convictions reveal, the respondent had a drinking problem, although he claimed that he was now able to control his drinking, and alcohol played no part in the commission of these offences.
The psychologist formed the view that the offences were related to “the extraordinary infatuation Mr Jefferson had for Ms Langdown to the extent that he was deprived of sound judgment because of the emotional and lustful attraction he felt towards her”. That conclusion would suggest that Ms Langdown was the principal cause of the offences. The sentencing judge, however, said, “There is no evidence that Ms Langdown was the initiator of these offences.”
The maximum sentences for the crimes of armed robbery and attempted armed robbery are respectively 25 years' imprisonment and 20 years' imprisonment. The imposition of a sentence which involved a period of immediate incarceration of but six months is prima facie surprising. In the case of a mature man with convictions for offences of dishonesty, who pleaded not guilty, and exhibited no remorse, only the existence of special circumstances could justify the sentence.
The mitigating circumstances identified by the sentencing judge were a reference to the sentence imposed upon the respondent’s co-offender and the nature of the weapons which were used in each of the robberies and the attempted armed robbery.
As to the first, Ms Langdown was sentenced to be imprisoned for a term of 12 months on the first count of armed robbery and to a term of 16 months on each of the other counts of armed robbery and was placed on a community-based order in respect of the count of attempted armed robbery, producing a total effective sentence of imprisonment of 16 months. The term of imprisonment was wholly suspended for a period of 12 months. It appears from the sentencing remarks of the judge who dealt with Ms Langdown that there were powerful mitigating factors which were absent in the case of the respondent. Ms Langdown pleaded guilty at the earliest opportunity. She cooperated with the authorities by giving evidence at the trial of the respondent, evidence which corresponded with an earlier statement to the police. The sentencing judge expressly found that Ms Langdown was repentant and remorseful and had made efforts to rehabilitate herself, apparently during the time between the commencement and the termination of the plea, which was, surprisingly, a period extending over months. The sentencing judge accepted that Ms Langdown committed the crime “as a result of intimidation from (the respondent) and fear for (her) wellbeing”. Her Honour found in this context that Ms Langdown had a compliant and submissive personality. The sentencing judge concluded that the offences of Ms Langdown were “out of character”. Reference was also made to Ms Langdown’s history of extensive sexual and physical abuse, and that at the time of the commission of the offences Ms Langdown was distressed as a result of a recent miscarriage and was using an increased quantity of benzodiazapines and alcohol. Ms Langdown had been admitted to psychiatric institutions on several occasions. There were reports before the sentencing judge dealing with Ms Langdown’s mental, emotional and physical state, including a report on the effects of a period of 48 days which she had spent in prison following her arrest. The sentencing judge said:
“I do accept that in all the circumstances of your case, if I were to impose an immediate custodial term, you would suffer considerable hardship by way of imprisonment, and I clearly take that matter into account when sentencing you.”
While Ms Langdown could claim coercion by the respondent as a mitigating factor, it did not follow that it was an aggravating factor in the case of the respondent, for different standards of proof apply to finding mitigating and aggravating factors. In fact the judge who sentenced the respondent could not find beyond reasonable doubt that the respondent caused Ms Langdown to commit the robberies by coercing her, although he ascribed to the respondent an important role in the commission of the crimes.
In my opinion the sentence imposed upon the co-offender cannot justify the extremely lenient sentence imposed upon the respondent. The differences between the personal circumstances of the respondent and Ms Langdown were significant. There was a basis for extending mercy to her, which was absent in the case of the respondent. Indeed I think the differences between the positions of the respondent and his co-offender were so many and so marked that their circumstances were not at all comparable.
The second mitigating factor adverted to by the judge who sentenced the respondent was the nature of the weapons used in the armed robberies. Neither the imitation pistol nor the paint-filled syringe were capable of causing serious injury, and so there was no significant risk of the commission of further crimes in the course of committing the robberies. That should not divert attention from the elements of the robberies, which depended upon deliberately instilling fear for their lives in vulnerable and isolated persons.
Overall I am of the opinion that the sentence imposed upon the respondent was plainly inadequate to reflect the gravity of the offences and is not warranted by circumstances personal to the respondent.
In my opinion the sentences imposed upon the respondent should be set aside and I would propose that he be re-sentenced to a term of three years' imprisonment on counts 1, 3 and 5 and to a term of two years' imprisonment on count 7, and I would propose that one year of the sentence on count 3 be served cumulatively on the sentence on count 1, producing a total effective sentence of four years' imprisonment. I would impose a non-parole period of two years' imprisonment. In proposing these sentences I am conscious of the constraints stemming from the principle of double jeopardy, which are inherent in re-sentencing an unsuccessful respondent to a Crown appeal. Those constraints apply, of course, to the individual sentences, the total effective sentence and the non-parole period. The non-parole period I propose increases at least fourfold the period of immediate incarceration originally imposed. I have also taken into account the sentence imposed upon the co-offender to the extent to which it is relevant.
CALLAWAY, J.A.:
I agree.
WARREN, A.J.A.:
I agree.
CALLAWAY, J.A.:
The orders of the Court will be as follows:
The appeal is allowed.
The sentences imposed below are set aside.
In lieu thereof the respondent is sentenced on count 1 to three years' imprisonment, on count 3 to three years' imprisonment, on count 5 to three years' imprisonment and on count 7 to two years' imprisonment.
The Court directs that 12 months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of four years' imprisonment.
A non-parole period of two years is fixed.
It is declared that the period of 139 days is to be reckoned as already served under the sentence and it is ordered that there be entered in the records of the Court the fact that that declaration was made and its details.
The Court grants to the respondent an indemnity certificate under s.15 of the Appeal Costs Act 1998.
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