DPP v Lednar

[2010] VSCA 46

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0932
DIRECTOR OF PUBLIC PROSECUTIONS
v
GARY STEPHEN LEDNAR	1st revision 15 March 2010, para 15

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JUDGES:	BUCHANAN and BONGIORNO JJA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2010
DATE OF JUDGMENT:	11 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 46
JUDGMENT APPEALED FROM:	R v Lednar, Unreported 7 November 2008, County Court of Victoria (Judge Lacava)

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CRIMINAL LAW – Sentence – Armed robbery – Soft targets – Crimes committed to fund drug addiction – Extensive prior convictions – Prospects of rehabilitation – Sentence of four years and six months’ imprisonment with a minimum term of two years and nine months’ imprisonment did not constitute error in principle.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr DA Dann with Mr M Gumbleton	Melinda Walker

BUCHANAN JA:

1. The respondent, then a 40 year old drug addict, wielding a small knife, embarked on a series of armed robberies of people he encountered in the street over a period of five weeks.  The victims were predominantly women.  In all, the respondent robbed seven victims and attempted to rob two others.  The items stolen in the robberies included handbags, purses, mobile phones, sunglasses, iPods and a camera.  The respondent also stole two motor vehicles which he drove to the scene of the robberies.

1. Subsequently the police executed a search warrant at a flat occupied by the respondent and there found a computer, handbag, wallets and a purse which had all been stolen.  The respondent was arraigned in the County Court and pleaded guilty to a presentment containing six counts of armed robbery, one count of attempted armed robbery, one count of robbery, one count of attempted robbery, two counts of theft and one count of handling stolen goods.

1. After a plea, the respondent was sentenced to be imprisoned for a term of 30 months on each of the counts of armed robbery;  for a term of nine months on each of the counts of theft;  for a term of 18 months on each of the counts of robbery and attempted robbery;  for a term of two years on the count of attempted armed robbery;  and for a term of two years on the count of handling stolen goods.  With a measure of cumulation, the total effective sentence of four years and six months’ imprisonment was produced and the sentencing judge fixed a term of two years and nine months’ imprisonment before the respondent was to be eligible for parole.

1. The Director has appealed against the sentence on the ground that the individual sentences, total effective sentence and the non-parole period are manifestly inadequate.  In particulars of that ground, the Director has alleged that the sentencing judge failed to give sufficient weight to aggravating circumstances and gave too much weight to mitigating circumstances. 

1. The respondent was brought up by a mother and father described by the sentencing judge as ‘hard working honest people of German descent’.  The respondent was educated to year 10 and then left school when he was expelled for fighting.  He obtained employment as a landscape gardener and then in his father’s family business.  The respondent ceased to work in the family business when he fell out with his brother and thereafter spent his time consuming and trafficking in drugs and serving frequent terms of imprisonment.  He was only sporadically employed.

1. The respondent has used cannabis and amphetamine, but chiefly heroin.  As a consequence of his use of and dealing in drugs, the respondent has an extensive criminal history.  The respondent has 237 previous convictions from 24 court appearances including drug offences, driving offences, offences of dishonesty, aggravated burglary and significantly, armed robbery.

1. As a consequence of the commission of the offences the subject matter of this appeal, the respondent, not for the first time, breached a parole order and was reclaimed by the Parole Board.  The respondent is now serving a sentence of six years and 10 months with non-parole period of two years and nine months.

1. The respondent married at the age of 21 years.  There were two children of the marriage.  The respondent does not now have much contact with his children or their mother. 

1. A report by a psychologist was tendered in the course of the plea.  The psychologist concluded, ‘Mr Lednar has demonstrated an ability to remain offence-free for an extended period without the support of a drug and alcohol counsellor, whilst living in the community.  And therefore it would be expected that with gains in treatment received while in custody and supports in place on his eventual release, he would have a greater chance of success in the future’.

1. The respondent could rely upon his pleas of guilty which were treated by the sentencing judge as ‘signifying genuine remorse’.  The respondent's offer to plead guilty was not accepted until the eve of the committal hearing.  Nevertheless the sentencing judge was entitled to treat the plea as one made expeditiously, for the respondent was initially charged with 80 offences and embarked upon negotiations which ultimately led to a significant reduction in the number of charges.

1. The sentencing judge placed some weight upon the factor of rehabilitation, describing it as ‘critical’.  He found that the respondent's offending was due to his addiction to heroin and said:

The community has an interest in bringing about the rehabilitation of drug users who offend and for this reason, often the sentencing court will have regard to the circumstances that led to the addiction, whether it can be treated and what if any steps have been taken by the offender to address her or her addiction in framing an appropriate sentence.

1. With respect, I agree with his Honour.  Addiction to drugs is not a mitigating factor, unless perhaps it is attributable to causes for which the offender is not responsible.  The chief relevance of drug addiction that is a significant cause of crime is the prospect of the addiction being successfully treated, for that bears upon and may often determine the chance of rehabilitation.  In this connection, his Honour noted that the respondent was currently on a methadone program and had undertaken a number of drug and alcohol programs whilst in prison.  On the other hand, the respondent had participated in drug courses in the past without success and previous sentencing judges had relied upon his prospects of reformation which were later seen to be a mirage.  Nevertheless I consider that his Honour was not required to entirely subjugate the aim of achieving reformation to consideration of general and specific deterrence and protection of the community. 

1. The offences were indeed serious.  The robberies were planned, at least to the extent that the respondent armed himself with a knife and stole a car to assist in his escape.  The respondent chose vulnerable victims.  As counsel for the Director submitted, general deterrence and protection of the community were very important factors in sentencing for these offences.  Specific deterrence was also important, particularly in the light of the respondent's striking record of prior convictions and the fact that the offences were committed whilst the respondent was on parole.

1. In his careful sentencing remarks, the sentencing judge addressed each of the matters now relied upon by counsel for the Director to demonstrate the inadequacy of the sentence.  Although a sentence of four and a half years' imprisonment in the circumstances of these offences and this respondent, might be described as lenient, I think that nevertheless the sentence does not ‘manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle’.[1]

   [1]R v Clarke [1996] 2 VR 520, 522 (Charles JA).

1. Crown appeals are to be regarded as rare and exceptional and call for restraint.  It is accepted that manifest inadequacy does not ensure the success of a Crown appeal.  Something more is required.  The inadequacy of the sentence must be ‘clear and egregious’,[2] the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience,[3] and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crime’.[4]

   [2]           DPP v Oversby [2004] VSCA 208, [19].

   [3]R v Osenkowski (1982) 30 SASR 212, 213.

   [4]See Everett v R (1994) 181 CLR 295, 306 (McHugh J).

1. In the present case I am of the opinion that the sentence imposed upon the respondent was not so lenient as to constitute error in principle.  I would dismiss the appeal.

BONGIORNO JA: 

1. I agree.

HABERSBERGER JA: 

1. Whilst I consider that the sentences were lenient, I agree with the learned presiding judge that the appeal should be dismissed for the reasons given by his Honour.

BUCHANAN JA: 

1. The order of the Court will be that the appeal is dismissed and it will be noted in other matters that the respondent will be granted a certificate under s 15 of the Appeal Costs Act1998.

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