DPP v Stevens
[2013] VSCA 187
•25 July 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0034
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| JASON MAXWELL STEVENS | Respondent |
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| JUDGES | NETTLE, OSBORN and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 25 July 2013 |
| DATE OF JUDGMENT | 25 July 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 187 |
| JUDGMENT APPEALED FROM | The Queen v Stevens (Unreported, County Court of Victoria, Judge Douglas, 26 February 2013) |
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CRIMINAL LAW – Appeal by Director of Public Prosecutions – Armed robbery – Guilty plea – Respondent sentenced to five years’ imprisonment – Non-parole period of three years fixed – Whether sentencing judge erred in taking into account the principle of totality – Whether sentencing judge erred in taking into account remorse – Whether manifest inadequacy – Where numerous prior convictions for similar offending – Established modus operandi – Use of large knives – Where sentence imposed was higher than those previously imposed on the respondent for similar offending – Appeal allowed – Respondent re-sentenced to seven years’ imprisonment with a non-parole period of four years and six months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr M Croucher SC with Ms K Argiropoulos | Amad and Amad Lawyers |
NETTLE JA
I invite Osborn JA to deliver the judgment.
OSBORN JA:
On 6 February 2013 Jason Stevens was convicted of one charge of armed robbery following a plea of guilty in the County Court. On 26 February 2013 her Honour Judge Douglas sentenced him to five years’ imprisonment and fixed a non-parole period of three years. Her Honour declared that but for the plea of guilty she would have imposed a sentence of eight years’ imprisonment with a minimum non-parole period of six years’ imprisonment.
The Director of Public Prosecutions (‘DPP’) now appeals this sentence on three grounds:
(a) the sentencing judge erred in taking into account the principle of totality;
(b) the sentencing judge erred in sentencing the respondent on the basis that he was remorseful; and
(c) the head sentence and the non-parole period were manifestly inadequate.
For the reasons which follow I accept that the ground of manifest inadequacy has been made out and that the respondent should be resentenced.
The background facts
On 23 March 2012 Stevens was living in Dandenong with a much younger woman, AJ, and her mother, HD. He left the house shortly after 8:00 am and at approximately 8:30 am confronted a newsagent, Van Hoang, who was serving behind the counter of his business in Hemmings Street.
Hoang heard a voice say, ‘Where’s the money?’ He looked up and saw Stevens who had covered his head with a hoodie and face with black cloth, was wearing overalls and was brandishing a large kitchen knife. Stevens then jumped the counter. Hoang ran around the counter, fearing for his safety, and escaped from the shop. Some $300 to $400 cash was taken.
I should add that the closed circuit television images tendered to the court confirm that the applicant presented to Hoang as a hooded faceless figure brandishing a large and dangerous knife. I accept Mr Kissane's characterisation of this presentation as terrifying.
Following police advertisements, HD identified Stevens as the probable offender. Stevens made a series of false denials in the record of interview but subsequently inculpated himself in discussion with police covert operatives in the cells. He pleaded guilty at the committal hearing on 16 November 2012.
Stevens has a longstanding history of drug addiction and a criminal history that the sentencing judge characterised as appalling. She summarised that history as follows:
5You are 40 years of age, having been born on 18 May 1972. Your criminal history spans the period from 29 November 1994 to 22 March 2011. You have 11 court appearances for which you have 85 prior convictions for dishonesty offences, 16 prior convictions for armed robbery, 31 convictions for theft, 10 convictions for burglary and one prior conviction for attempted armed robbery. You have continued to commit offences to support your drug habit.
6On 18 June 1997 you were convicted of armed robbery, attempted armed robbery and robbery and were ordered to serve three years' imprisonment, three months of which was suspended for two years.
7On 22 June 2001 you were sentenced by His Honour Judge Kelly in respect of a number of offences, including 12 charges of armed robbery and three charges of robbery. The total sentence imposed was five years' imprisonment and a non-parole period of four years was ordered.
8On 18 June 2008 you were sentenced by Her Honour Judge Millane for two charges of armed robbery and theft to four years and three months' imprisonment with a non-parole period ordered of 30 months. You were also sentenced in relation to other offences of dishonesty as well as drug offences in relation to heroin and cannabis.
9On 22 March 2011 you were sentenced at the Dandenong Magistrates' Court in relation to a number of offences of dishonesty as well as drug offences. You were sentenced to six months' imprisonment which was ordered to be wholly suspended for 12 months.[1]
[1]R v Jason Stevens (Unreported, County Court of Victoria, Judge Douglas, 26 February 2013) (‘Reasons for sentence’), [5]-[9].
Further, as her Honour noted, both the offences for which Stevens was sentenced by Judge Kelly and those for which he was sentenced by Judge Millane involved offending of a generally similar nature to the case before the Court. In particular, they involved the use of large kitchen knives to confront individuals serving in retail premises and pharmacies, and also, on occasion, involved Stevens jumping the counter to directly confront those behind it.
Her Honour specifically accepted that, having regard to the nature of the offending and the respondent’s criminal history, she must give considerable weight to specific deterrence and must also give weight to just punishment and protection of the community. Ultimately, this appeal raises at its heart the question of whether she did so adequately.
Her Honour’s reasons
The sentencing judge gave careful and comprehensive reasons for her sentence. In summary she took into account the following:
· the factual circumstances of the offending;[2]
[2]Reasons for sentence [1]-[4].
· the applicable maximum penalty of 25 years’ imprisonment;[3]
[3]Ibid [1].
· the impact of the offending on the victim;[4]
[4]Ibid [3].
· the seriousness of the offence of armed robbery;[5]
[5]Ibid [4].
· the need to give significant weight to general deterrence in respect of an offence which is generally committed against soft targets such as people who work in convenience stores;[6]
[6]Ibid [4].
· the respondent’s prior criminal history and the similar circumstances in which previous armed robberies were committed;[7]
[7]Ibid [5]-[12], [34].
· the need for substantial weight to be given to specific deterrence by reason of the respondent’s prior history;[8]
[8]Ibid [11], [32].
· the need to give weight to just punishment and the protection of the community;[9]
[9]Ibid [13], [32].
· the respondent’s personal circumstances, including:
(i) his age (he was 40 at sentence and is now 41);[10]
[10]Ibid [5].
(ii) his prior convictions;[11]
[11]Ibid [5]-[12].
(iii) his drug addiction and its link to criminal offending over a 20 year period;[12]
[12]Ibid [14], [17]-[19].
(iv) his family history and upbringing;[13] and
[13]Ibid [16]-[18].
(v) family contact and support;[14]
[14]Ibid [26], [34].
· the progress made by the respondent following his release on parole on 10 February 2010, namely his obtaining of employment and accommodation and his abstinence from use of illicit drugs for a period of approximately one year;[15]
[15]Ibid [20]-[22].
· the respondent’s subsequent lapse into drug use in the context of his relationship with a young woman who was a drug user;[16]
[16]Ibid [23]-[24].
· the need for the respondent to undergo treatment in order better to deal with his drug addiction and thereby reduce his risk of reoffending;[17]
· the respondent’s early plea of guilty;[18] and
· the finding that the respondent had ‘some chance for rehabilitation’.[19]
[17]Ibid [29]-[31].
[18]Ibid [27].
[19]Ibid [33].
Ground 1 of appeal – the principle of totality
In the penultimate paragraphs of her reasons for sentence the judge stated:
32I have stated that I must give substantial weight to deter you from committing this type of offence again which is linked to abstinence from illicit drugs. I must also give weight to protecting the community from you, in particular those running convenience stores. I must also give weight to just punishment and, as I said, general deterrence.
33I sentence you on the basis that there is some chance of rehabilitation, as hopefully you have reached the age of more maturity than you have been earlier. You are now 40. Also, if you complete a drug course at the prison prior to release and you continue treatment when you are released, your chances of rehabilitation will have improved greatly.
34Further in your favour, you have the continued support of your family. However, as a sentencing judge, I cannot ignore your appalling criminal history of having committed 16 other armed robberies. The sentence I impose must not crush you and I also must take into account, given the number of gaol sentences you have served, the principle of totality.[20]
[20]Ibid [32]-[34].
The DPP submits that the reference to totality demonstrates an error of principle because the notion of totality is only relevant to a sentencing discretion when an offender is sentenced for more than one offence at the same time, or is already serving a sentence of imprisonment when sentenced.[21]
[21]Postiglione v The Queen (1997) 189 CLR 295, 308; Morgan v R [2013] VSCA 13, [64}.
There can nevertheless be no complaint that the sentencing judge recognised that the sentence she should impose should not crush the respondent, nor can there be complaint that she had regard to the cumulative effect of the jail sentences he had previously served (although there might be debate as to the proper conclusion to be drawn from this history).
I accept that the specific reference to the principle of totality in the terms that it was made was misplaced, but I would not infer from it alone that the sentencing discretion miscarried.
Ground 2 – remorse
At [27] of her reasons for sentence her Honour stated:
27I take into account your plea of guilty at the earliest stage and the fact that Mr Hoang and the police involved did not have to give evidence at the committal or at a trial. You have also saved the court the time, inconvenience and cost of a trial. I accept that you have shown remorse from the plea of guilty.[22]
[22]Reasons for sentence [27].
Remorse was not advanced as a mitigating consideration upon the respondent’s plea.
The DPP submits that the sentencing judge erred in concluding the respondent had shown remorse, when regard is had to his post-offence conduct including his initial denials of responsibility for the offence.
The respondent submits that a plea of guilty will ordinarily provide a proper basis for the inference of some remorse.[23] Further the primary focus of the plea was understandably the connection between the respondent’s drug addiction and his offending.
[23]Siganto v The Queen (1998) 194 CLR 656, 663-4 [22]; Phillips v The Queen [2012] VSCA 140, [37].
In my view the sentencing judge’s reasoning made clear that she apprehended that the font and origin of the respondent’s offending was his very longstanding drug addiction and that his prospects of rehabilitation (such as they were) were governed essentially by the need to ‘seriously deal’ with this drug addiction.
I am not persuaded that the sentencing judge’s reference to some remorse when viewed in this context was not open to her. Remorse was only one factor bearing on her conclusion that there were some prospects of rehabilitation. The other factors included the fact that the respondent had previously had only had relatively limited participation in drug rehabilitation programs, his age and maturity, his family support, and the fact that he had been able to previously complete parole periods successfully and had remained drug free for a significant period of time before relapsing prior to the subject offence. I also accept the respondent’s submission that the discount allowed on the plea of guilty does not enable an inference to be drawn that the sentencing judge gave undue weight to the consideration of remorse.[24]
[24]R v Scerri [2010] VSCA 287, [22]-[24].
Ground 3 – manifest inadequacy
By reason of s 289(1) of the Criminal Procedure Act 2009, the Court of Appeal must allow the appeal if the DPP satisfies the Court that –
(a) there is an error in the sentence first imposed; and
(b) a different sentence should be imposed.
Subsection (b) leaves the Court with a residual discretion notwithstanding the demonstration of sentencing error. The concept of double jeopardy is no longer relevant to this issue.[25]
[25]Section 289(2); DPP v Karazisis (2010) 31 VR 634, 652 [73] following.
In order to establish manifest inadequacy, the Director must demonstrate that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[26]
[26]DPP v Karazis (2010) 31 VR 634, [127].
The notion of the range of sentencing options must itself be a flexible one because the ‘discretion which the law commits to sentencing judges is of vital importance to the administration of our system of criminal justice.’[27]
[27]Ibid [128].
As the passages I have already quoted make clear, the sentencing judge expressly recognised the need for the sentence in the present case to give adequate effect to considerations of specific deterrence, protection of the community (including in particular those operating convenience stores), just punishment and general deterrence.
I also accept Mr Croucher’s submission that regard must be had to current sentencing practices, although it seems to me that the particular facts of this case are plainly distinguishable from those in the other cases to which he specifically refers.
I further accept that the sentence imposed by the sentencing judge was greater than that previously imposed upon the applicant for any individual armed robbery offence, the highest such sentence being a sentence of three and a half years’ imprisonment imposed by her Honour Judge Millane.
Nevertheless I have ultimately reached the view that despite the countervailing considerations and in particular the respondent’s plea of guilty, the fact that he has some prospects of rehabilitation and the fact that he has family support, the sentence imposed was plainly inadequate.
Armed robbery is a very serious offence. It is predatory in its violence and fundamentally destructive of the security and confidence in the law which those who operate facilities such as convenience stores are entitled to enjoy.[28] The respondent is a serial offender. His offending has recurred over the whole of his adult life. He has made repeated resort to the use of knives to threaten those working in retail premises as an element of his modus operandi. Having regard to his history and maturity, he cannot now be said to have more than limited prospects of rehabilitation. He has not responded to previous moderately substantial periods of imprisonment imposed by the County Court for armed robbery. He had also completed a suspended sentence only one month prior to the current offending but not learned from this. He has reached the point where he must suffer a substantial custodial sentence in order to adequately reflect the need for specific and general deterrence, protection of the community and the need for just punishment.
[28]Williscroft [1975] VR 292, 301; See, eg, R v Carmichael [2008] VSCA 10, [24] (Kellam JA, Nettle and Buchanan JJA agreeing); R v Sullivan [2005] VSCA 286, [23] (Eames JA, Charles and Buchanan JA agreeing); R v Pratt [2003] VSCA 186, [19]- [20] (Eames JA (Winneke ACJ and Phillips JA agreeing)); R v Kittikhoun [2004] VSCA 194, [15] (Chernov JA (Vincent JA and Gillard AJA agreeing)).
The fact that the armed robbery was committed to support a drug habit did not materially reduce the respondent’s moral culpability.[29] Nor did the evidence establish any compelling case that a reduced sentence was either necessary or desirable for the purposes of the respondent’s rehabilitation.
[29]Halewyn v R (1984) 12 A Crim R 202, 203.
Conclusion
I would allow the appeal on ground 3 and resentence the respondent to seven years’ imprisonment with a non-parole period of four and a half years. I would declare pursuant to s 6AAA of the Sentencing Act1991 that, but for the plea of guilty, I would have imposed a sentence of 10 years’ imprisonment with a minimum non-parole period of seven and a half years.
NETTLE JA:
I was for some time attracted to Mr Croucher’s submission that the sentence imposed in this case represented not only a substantial ‘step-up’ from the individual sentences in the past imposed on the respondent for similar offences but also one well within the range of sentences imposed on other offenders for comparable offences. Indeed, having regard to the recent observations of this court in Camblin,[30] I was for a time persuaded that an individual sentence of anything much more would be beyond the range of current sentencing practices. On reflection, however, there appear to me to be five matters which conduce to the view that the sentence imposed in this case is manifestly inadequate.
[30]Camblin v The Queen [2013] VSCA 1.
First, as appears from the sentencing remarks of His Honour Judge Kelly and her Honour Judge Millane when the respondent was sentenced on previous occasions, and appears even more graphically from the CCTV evidence which was made available to us, the respondent's offending is characterised by aggressive behaviour with a large knife which is calculated to terrify his victims. Secondly, such is the nature of the knife and the way in which it appears to be used, that its effect upon victims is likely to instil in them the same sort of terror as would result from the use of a firearm. Thirdly, it is significant that the respondent had only just completed a suspended sentence when the subject offending occurred. Fourthly, as is now plain from his criminal history, the applicant has not taken the opportunities which have been provided to him in the past to learn from his mistakes and to reform. Fifthly, although the sentencing judge was disposed to conclude that the respondent had a fair chance or fair prospects of rehabilitation, in truth one could not realistically regard his prospects of rehabilitation as anything more than speculative.
In the result, I am persuaded the sentence imposed in this case was manifestly inadequate and ultimately I agree with the disposition of the appeal proposed by my brother Osborn.
COGHLAN JA:
I agree with the reasons advanced by Osborn JA and join in the remarks of the learned presiding judge.
NETTLE JA:
The orders of the Court are as follows:
(1) the appeal is allowed;
(2) the sentenced passed below is quashed;
(3) in view thereof, the respondent is re-sentenced to a term of seven years' imprisonment;
(4) a non-parole period of four years and six months is set;
(5) pursuant to s 18 of the Sentencing Act 1991, it is declared that the number of days already served under the sentence is 436 days not including this day and it is directed that the fact of the declaration and its details be entered in the records of the court;
(6) pursuant to s 6AAA of the Sentencing Act 1991, it is declared that but for the respondent's plea of guilty, he would have been re-sentenced to 10 years' imprisonment with a non-parole period of seven and a half years.
Finally, I should say I think that the compensation order which was made below is confirmed.
A certificate will be granted.
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