DPP v Samarentsis
[2007] VSCA 20
•22 February 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 311 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| Appellant | |
| v. | |
| DAVID SAMARENTSIS | Respondent |
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JUDGES: | BUCHANAN and EAMES JJA and KELLAM AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 February 2007 | |
DATE OF JUDGMENT: | 22 February 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 20 | |
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Sentence – Director’s appeal to increase sentence – Armed robbery – Aggravated burglary – Thefts – Assault with a weapon – Whether sentence manifestly inadequate – Whether extending mercy open in the circumstances – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C J Ryan, SC | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson, QC with Mr S Zebrowski | Balmer and Associates |
BUCHANAN JA:
I agree with Kellam AJA, for the reasons he has stated, that the appeal should be dismissed.
EAMES JA:
I have had the benefit of reading the judgment of Kellam, A.J.A., in draft. I gratefully adopt his Honour’s analysis of the facts and issues in the appeal. I agree with his Honour that the sentence was an extremely lenient one, indeed as to that there was broad agreement; not only did counsel on both sides regard it as such but so too did the learned sentencing judge. The sentence on count 3, for aggravated burglary, was particularly lenient, having regard to the prior convictions of the respondent.
It is very clear, however, that the judge knew that he was adopting a course which gave much greater weight to the respondent’s prospects of rehabilitation than it did to factors such as denunciation and deterrence. As his Honour expressly stated, he knew he was taking a chance in extending leniency to the respondent, but he did so only after giving very careful consideration to the appropriateness of adopting that course. In particular, he carefully addressed the nature of the offences against the elderly man which constituted counts 2 and 3.
The victim on counts 2 and 3 was known to the respondent and to his co-accused. The evidence on the plea disclosed that he had previously supplied the co-accused with benzodiazepine and that in the week before these offences the victim had sold serapax tablets both to co-accused and also to the respondent. That evidence was not challenged by the prosecutor. In stating those matters, I do not suggest that drug dealers are fair game for drug users who wish to engage in aggravated burglary and armed robbery. Indeed, general and specific deterrence are important sentencing considerations in such circumstances. However, as serious as the offences were, they produced no direct injury and did not involve the duration or degree of violence as frequently attends the many other instances of such offences
that come before the courts. The victim declined to file a victim impact statement, which does not establish an absence of adverse emotional consequences, but equally does not positively establish that they did arise.
As was acknowledged by King, C.J. in Osenkowski[1], there must be occasions where a judge, especially one who has had as much sentencing experience as this judge, is entitled to take a chance on rehabilitation where factors point strongly to the likelihood that a long-term offender will seize it as a last chance for reformation. The judge did not simply impose a suspended sentence, he also imposed a community based order which obliged the respondent to make a substantial commitment by way of performing unpaid work within the community.
[1](1982) 30 SASR 212, at 212-3, per King, C.J.
For these reasons and also for the reasons stated by Kellam AJA., I agree that the appeal should be dismissed.
KELLAM AJA:
This is an appeal brought by the Director of Public Prosecutions pursuant to s.567A of the Crimes Act 1958. The appeal is brought against the sentence imposed by the County Court at Melbourne on 7 September 2006 upon the respondent, David Samarentis, after he had that day pleaded guilty to six counts of theft, one count of armed robbery, one count of aggravated burglary and one count of attempted theft. In addition the respondent pleaded guilty to two summary charges of assault with a weapon.
The sentences imposed by the learned sentencing judge were as follows:
Count 1 (theft) – one month’s imprisonment;
Count 2 (armed robbery) – two years’ imprisonment;
Count 3 (aggravated burglary) – community based order for nine months with 250 hours’ community work;
Count 4 (theft) – one month’s imprisonment;
Count 5 (theft) – one month’s imprisonment;
Count 6 (theft) – one month’s imprisonment;
Count 7 (attempted theft) – one month’s imprisonment;
Count 8 (theft) – one month’s imprisonment;
Count 9 (theft) – one month’s imprisonment.
Summary offence 1 (assault with a weapon) – three months’ imprisonment;
Summary offence 2 (assault with a weapon) – three months’ imprisonment.
His Honour directed that all of the sentences were to be served concurrently
with each other making a total effective sentence of two years’ imprisonment. He further ordered that the total effective sentence of two years be wholly suspended for a period of two years.
The Director of Public Prosecutions now appeals in respect of these sentences on the grounds that the individual sentences imposed, and the total effective sentence, are both manifestly inadequate, and furthermore, on the ground that the suspension of the whole of the term of imprisonment for an operational period of two years is manifestly inadequate. He contends that the sentences failed to reflect adequately the gravity of the offences, the requirement for specific deterrence, the requirement for general deterrence and the respondent’s previous convictions, and that the judge gave too much weight to factors of mitigation. It is submitted further that the sentencing judge gave insufficient weight to the fact that the respondent’s offending involved multiple victims, and it is specifically submitted that the judge failed to order any cumulation of the sentences imposed, in circumstances which required that he do so.
The facts of the circumstances in relation to Count 1 are that on the evening of 27 April 2004 the respondent smashed a window of a Mitsubishi motor vehicle and having gained entry to the vehicle stole a pair of sunglasses and two bags of clothing belonging to the owner. Several drops of blood were found on the window sill of the rear door of the car. Subsequent analysis of the blood provided a match with the DNA of the respondent.
All the other counts and charges upon which the respondent was presented before the Court took place on 20 November 2005.
On the morning of that day, a Sunday, a 75 year old man who was confined to a wheelchair returned to his home in a Housing Commission unit in Neill Street, Carlton. Soon after the victim had returned home a co‑accused of the respondent, Ashleigh Judd, roller skated into the victim’s loungeroom through the unlocked front door. Soon after Judd entered the premises, the respondent also entered the premises carrying a knife. Both Judd and the respondent were known to the victim. The victim yelled at the respondent to leave his flat. The respondent walked to the victim, stood behind him and placed the knife at the back of his neck saying, “Where are the pills?” There was material put before the learned sentencing judge on the plea to the effect that the victim had previously sold Serepax tablets to both the respondent and his co‑accused. Still holding the knife to the back of the victim’s neck, the respondent began searching his jacket pockets. He took the victim’s mobile phone, his wallet containing $150 and several Serepax tablets. These circumstances form the factual background of Count 2 on the presentment, a count of armed robbery, and Count 3, a count of aggravated burglary.
In the early afternoon of the same day the respondent committed the offences which are the subjects of Counts 4, 5, 6 and 7 on the presentment, and summary charges 1 and 2. The factual circumstances in relation to these matters is that the respondent attended at a car park under an apartment complex in Albert Road, South Melbourne. He waited for a tenant to activate the gate to the car park and then entered the car park. Once inside he checked several cars to see if they were open. Eventually he forced the boot of a vehicle and took from it a Samurai sword. This theft is the subject of Count 4. He also took some coins and notes from another car and a red makeup container, brown necklace and silver coloured necklace from another vehicle. These thefts are the subject of Counts 5 and 6 on the presentment.
However the respondent was observed in the car park and a witness reported her suspicions to the concierge of the apartment block. At this time the respondent was observed by the concierge to be sitting astride a mountain bike with another mountain bike in close proximity. He was holding the second bike. The concierge approached the respondent and enquired of him as to whether or not the bikes belonged to him. The respondent told the concierge that the bike he was sitting on was his. These facts are the basis of Count 7 on the presentment being an attempt to steal two mountain bikes.
In the course of the discussion about the ownership of the bicycles, the concierge observed the handle of the Samurai sword, which the respondent had stolen previously from a car, protruding from the trousers of the respondent. The concierge asked the respondent for identification and told him that the police would be called. The respondent got off the bicycle and told the concierge to open the door to the car park. The respondent then produced the Samurai sword and pointed it at the concierge and at the witness who was standing near him. The respondent demanded that the door be opened. These events are the subject of summary charges 1 and 2 being assault with a weapon.
The respondent then left the car park. Soon thereafter he was apprehended by police. He was still carrying the sword. When interviewed he made full admissions to the thefts and the assaults with a weapon which had taken place in the apartment car park shortly before his arrest.
Subsequently that day the respondent was released by police, having been charged with those offences. Soon after his release by police the respondent stole a BMX bicycle from the rear yard of a residence in St Kilda. The owner of the bicycle took chase to him and recovered the bicycle. The respondent was arrested by police soon thereafter. That matter is the subject of Count 8 on the presentment, a count of theft. Subsequently that evening and upon arrest, the respondent was found to be in possession of a video player, a bottle of whiskey, two bottles of port and assorted other property belonging to persons unknown. These matters are the subject of Count 9.
The respondent was aged 23 years at the time of the commission of the offences on 27 April 2004, and 24 years at the time of the commission of the offences on 20 November 2005, having been born on 20 February 1981. He was aged 25 years at the time that he came to be sentenced on 7 September 2006.
The respondent admitted to 18 convictions from previous appearances in the Children’s Court and 94 convictions from 11 appearances in the Magistrates’ Court. Of the appearances in the Magistrates’ Court, three related to convictions for aggravated burglary and 13 convictions related to burglary offences. In addition, the respondent had a conviction for recklessly causing injury and a conviction for assault with a weapon.
The learned sentencing judge had before him a number of reports including a report of a psychological assessment prepared by forensic psychologist Ian Joblin, and a detailed report prepared in relation to the respondent’s CREDIT bail support arrangements. It would appear that after his arrest by police on 20 November 2005 the respondent was granted bail under the CREDIT bail support program conducted by the Magistrates’ Court of Victoria. He was bailed on 23 November 2005 having been assessed as being suitable to attend the bail support program.
The material before the learned sentencing judge established that the respondent had had a disturbed history. His father was said to be a violent, aggressive man who had serious difficulties with alcohol and had had a history of attention from the police for alcohol related offending. The respondent was educated to Year 8 but is virtually illiterate. He commenced smoking cannabis at the age of 13 and by his mid teenage years was a heroin and amphetamine user. There was evidence that drug use had pervaded his life since his early teenage years and developed to a point of serious interference with his life. The respondent informed Mr Joblin that the offences took place at a time when he was a heavy user of amphetamines and prescriptive drugs.
The evidence before the learned sentencing judge was that the respondent had performed well on the CREDIT bail support program conducted by the Magistrates’ Court. He completed the program satisfactorily by 21 January 2006 and thereafter was referred to a personal support program conducted by the Westgate Community Initiatives Group. In addition, he commenced drug and alcohol counselling through the Voyage Alcohol and Other Drugs Service. Regular drug testing throughout 2006 revealed abstinence from illicit substances. Furthermore, in the course of 2006 the respondent obtained employment with the Coburg Fruit Market. In addition, in early 2006 he formed a stable relationship with a woman older than he is. This woman has two teenage children.
Accordingly, there was a considerable volume of evidence before the learned sentencing judge to the effect that there had been a significant degree of rehabilitation on the part of the respondent between his arrest on 20 November 2005 and the date of his appearance in the County Court on 7 September 2006. His Honour summarised those matters in the following terms:
“… Since you have been bailed in late November last year, nine or ten months, there is an extraordinary number and coincidence of factors which actually demonstrate a complete turn around in your life, and in your appreciation of society and society’s rules and demands. Now of course, nobody can guarantee, nobody can guarantee that you, particularly with your background of drug problems, and so on, nobody can guarantee that this improvement in your situation will continue forever, but all the indications are that you are trying very hard and with considerable assistance, fortunately now, to do the right thing and to become a law abiding citizen. In summary you have complied with the credit bail arrangements over the first nine weeks of your liberty, and those requirements are quite stringent but you complied with a positive attitude. … You have undertaken a personal support program a two year program to assist in relation to various personal problems, and employment barriers, and issues including drug addiction, homelessness, psychosocial issues, literacy, numeracy problems … and further to that you have now enrolled in an adult education course for literacy and numeracy and that clearly is a positive step as well.”
It should be observed that his Honour heard evidence from the partner of the respondent and he formed a positive view of that relationship and of the fact that at that time the respondent was in employment. He concluded by saying, “In other words there are many factors that all of a sudden, over the last six or nine months have come together to give you, and therefore give the Court, optimism for finally, at the age of 25 years, for a useful future in the community where you give away the drug use, you give away the bad peer groups and you live with a decent person and a decent family and do the right thing and work for your living. I am prepared to give you the chance to do that without putting you back into gaol.”
There can be no doubt that his Honour regarded the sentence which he proposed to hand down as most merciful. He said, “ … it is an unusual situation. Normally somebody with your record and committing an offence as serious as armed robbery could very confidently expect a gaol sentence to be actually served, but because of the extensive and genuine efforts you have made to change your life and the emergence of the very positive influence of your present partner, … I am prepared to fashion an outcome that can avoid the risk that by sending you back to prison you will lose the benefits that have occurred.”
It is apparent from the reading of his Honour’s sentencing remarks that in the particular circumstances facing him he regarded rehabilitation of the respondent as the major sentencing factor notwithstanding the nature of the offences against the elderly man.
The Director submits that the individual sentences of imprisonment imposed and the total effective sentences are both manifestly inadequate and that the suspension of the sentence for a period of two years results in manifest inadequacy. In particular, he contends that the offences of aggravated burglary and armed robbery are very serious offences and that those offences were accompanied by a number of aggravating features. The use of a knife to threaten and intimidate a 75 year old man confined to a wheelchair is relied upon particularly by the Director. In this regard, the Director submits that the use of a weapon on a “soft target” calls for a sentence that would deter like-minded offenders. The Director submits that in the circumstances of the respondent’s previous sentencing dispositions, including an intensive corrections order, a combined custody and treatment order and wholly and partially suspended sentences, the issue of specific deterrence is of great importance. The fact that the respondent admitted to numerous prior convictions for aggravated burglary, burglary and theft offences, emphasises the importance of specific deterrence in the submission of the Director. Furthermore, it is submitted that insufficient weight was given to the fact that the respondent’s offending involved multiple victims and that although much of the offending took place on one day the offences could nevertheless be categorised as having been committed on four separate occasions. Insofar as the learned sentencing judge took into account relevant matters of mitigation including his plea of guilty and the background of the respondent, together with his substantial steps towards rehabilitation, it is submitted that whilst such factors give rise to a need for mitigation they were not sufficiently balanced with other sentencing considerations applicable to the respondent. It is submitted that there should have been at least some cumulation between the groups of offences.
Counsel for the respondent submits that there were powerful matters of mitigation in evidence before the learned sentencing judge. It is submitted that it was open to the learned sentencing judge to impose a sentence which would neither undermine the efforts made by the respondent to lead a stable life, nor impair the respondent’s prospects of leading a stable life.
In my view the imposition of a wholly suspended sentence was merciful indeed. The circumstances of the armed robbery, the subject of Count 2 were, as the Director submits, serious, involving as they did the use of a knife to rob an elderly man in a wheelchair in his own home. Likewise, the circumstances of the aggravated burglary, being the entry of the respondent into the home of his victim, at a time when he was armed with a knife, was a serious crime and, on the face of it, called for a sentence of imprisonment, particularly in circumstances where the respondent had three prior convictions for aggravated burglary.
There is also weight in the argument advanced by the Director that the circumstances of the counts before the learned sentencing judge called for some cumulation. The respondent pleaded guilty to four separate episodes of criminal conduct, the first on 27 April 2004 and the three sets of offences committed on 20 November 2005, the third of which occurred after the respondent had been arrested and bailed in relation to the events which occurred at the apartment block in South Melbourne. In particular, the use of the knife to commit the armed robbery was separate in time, place, weapon and victim from the respondent’s subsequent use of the Samurai sword to threaten the concierge and the witness at the apartment block in question.
However, in the circumstances of this case the learned sentencing judge, who it should be observed is a most experienced sentencing judge, had before him a relatively young man who had been in the grip of excessive drug use from his early teenage years. The respondent had a considerable number of prior convictions. On any view, and as the learned sentencing judge clearly understood, the offences committed by the respondent justified a term of imprisonment.
Nevertheless, the learned sentencing judge also had before him evidence of what he called “an extraordinary number and co-incidence of factors” which he stated demonstrated a “complete turn around” in the life of the respondent. As stated above, the material before the judge was to the effect that the respondent had complied fully with the stringent obligations required of him under the CREDIT bail support program, that he was drug free, that he had been stabilised on Methadone, that he had obtained employment and had commenced education and that he had formed a stable relationship with a woman. In addition, his Honour had before him a report from a youth activities officer employed by the City of Yarra who had known the respondent for 15 years and from the age of 10 years. That report was a powerful statement of the drug use and desperation of the respondent which had continued throughout most of that 15 years up until the point of the commission of the crimes then before the Court.
The principles upon which appeals by the Director under s.567A of the Crimes Act are to be considered are clear. Such appeals should be brought only in rare and exceptional circumstances, such as where manifest inadequacy in sentencing is revealed, or where there is a clear error in principle: Everett v The Queen;[2] R v Clarke.[3] However, as King CJ said in R v Osenkowski:[4]
“Prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when a judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.”
[2](1994) 181 CLR 295 at 300.
[3][1996] 2 VR 520 at 522.
[4](1982) 30 SASR 212 at 212-213.
No doubt the occasions whereby an experienced judge, as here, forms the view intuitively that an offender with a bad record has reached a stage in his life when reform is a real prospect, will be rare. However it must be remembered that the exercise of mercy in such a case is not merely in the interests of the offender, but that the public has a real interest in such reform, particularly in cases where the offender has become entrenched in a criminal lifestyle from a young age. In my view, taking into account the public interest in such reform, it was open, in the somewhat exceptional circumstances of this case, for the learned sentencing judge to impose a sentence which did not undermine the demonstrated efforts of the respondent to lead a stable life, and thus to impose a sentence which would maximise the respondent’s prospects of rehabilitation.
The way in which the sentencing judge achieved this aim was by the imposition of a suspended sentence together with a community based order which obliged the respondent to make a substantial commitment by way of performing unpaid work within the community. The length of both the suspended sentence and the CBO are each shorter than I would have imposed had I concluded, as the judge did, that in all the circumstances a sentence which did not require immediate detention of the respondent in custody was required. But that is not the point. This is a Director’s appeal and special conditions apply. Having regard to the principle of double jeopardy, even if I were satisfied that the sentence imposed was manifestly inadequate, I would have exercised the residual discretion of the Court so as to not intervene and impose a new sentence.[5] However, the exercise of that discretion is not necessary, because in the end result and in the unusual circumstances of this case, I am not persuaded that the learned sentencing judge imposed a sentence which can be described as manifestly inadequate.
[5]As recognised in R v Clarke [1996] 2 V.R. 520, at 522, per Charles, J.A., Winneke, P. and Hayne, J.A. agreeing.
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