Edward Robinson v The Queen
[2017] VSCA 101
•3 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0010
| EDWARD ROBINSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGE: | TATE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 May 2017 |
| DATE OF JUDGMENT: | 3 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 101 |
| JUDGMENT APPEALED FROM: | [2016] VCC 2068 (Judge McInerney) |
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CRIMINAL LAW – Application for leave to appeal – Sentence – Aggravated burglary, intentionally causing injury, storing a firearm in an insecure manner whilst unlicensed and possession of ammunition without a licence – Total effective sentence of five years and six months’ imprisonment – Non-parole period of three years – Parity – Manifest excess – Crown concessions – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M J Mykytowycz | Lethbridge Barristers & Solicitors |
| For the Respondent | Mr B L Sonnet | Mr John Cain, Solicitor for Public Prosecutions |
TATE JA:
The applicant, Edward Robinson, seeks leave to appeal against the sentence imposed on him in the County Court of Victoria on 16 December 2016. It appears that he pleaded guilty at the committal on 18 May 2016, and again before the plea hearing on 1 August 2016, to one charge of aggravated burglary (trespass with intent to assault, person present) contrary to s 77 of the Crimes Act 1958, one charge of intentionally causing injury contrary to s 18 of the Crimes Act, one charge of storing a firearm in an insecure manner whilst unlicensed contrary to s 129A of the Firearms Act 1996, and a summary offence of possession of ammunition without a licence contrary to s 124(1) of the Firearms Act. His younger brother, Mark Robinson, who faced similar charges as a co-offender, also pleaded guilty to the charges against him. The two men were sentenced together by the same judge on 16 December 2016.[1]
[1]DPP v Robinson [2016] VCC 2068 (‘Sentencing reasons’).
Edward Robinson was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1 Aggravated burglary [Crimes Act 1958 s 77(1)(b))] 25 years’ imprisonment 5 years’ imprisonment Base 2 Intentionally causing injury [Crimes Act 1958 s 18] 10 years’ imprisonment 12 months’ imprisonment 6 months 3 Storing a firearm in an insecure manner whilst unlicensed [Firearms Act 1996 s 129A] 240 penalty units or 4 years’ imprisonment 6 months’ imprisonment Concurrent 4
(summary offence)
Possession of ammunition without a licence [Firearms Act 1996 s 124(1)] 40 penalty units Convicted and fined 5 penalty units Total Effective Sentence:
5 years and 6 months’ imprisonment
Non-Parole Period:
3 years
Pre-Sentence detention declaration:
183 days
Section 6AAA Statement: 7 years and 4 months’ imprisonment, non-parole period 4 years and 6 months.
Other relevant orders: Forensic Sample Order pursuant to s 464ZF of the Crimes Act 1958. Disposal order made.
The judge imposed a sentence of five years’ imprisonment on each brother for the charge of aggravated burglary. This was the base sentence for each man. On the charge of intentionally causing injury, he sentenced Edward to 12 months’ imprisonment and Mark to 18 months’ imprisonment. In relation to the firearms offences, he sentenced Edward to six months’ imprisonment and Mark to two years’ imprisonment. The firearms offence in respect of which Edward was charged, as recorded above, was storing a firearm in an insecure manner whilst unlicensed (Firearms Act s 129A), while the firearms offence in respect of which Mark was charged was possessing a firearm while a prohibited person (Firearms Act s 5). The judge imposed a fine on Edward for the summary offence in relation to the ammunition and imposed a sentence of three months’ imprisonment on Mark for a drug offence to be served concurrently. With respect to the intentionally causing injury offence, he ordered cumulation of six months on the base sentence for both brothers. With respect to Mark, he also ordered cumulation of six months with respect to his firearms offence. The result was that Edward’s total effective sentence was five and a half years’ imprisonment (together with the fine), while for Mark it was six years’ imprisonment. The judge declared a non-parole period of three years for Edward, while for Mark it was four years.
Edward seeks leave to appeal on the ground that there was a specific error of a lack of parity between the sentence imposed on him and that imposed on Mark. He also challenges the sentence as being manifestly excessive.
For the reasons that follow, I consider that leave to appeal should be granted.
Circumstances of the offending
The charges of aggravated burglary and intentionally causing injury faced by the two brothers arose out of a home invasion by them on the night of Wednesday 2 September 2015. Edward’s partner, Victoria Petrellis, had been having an affair with the victim, Walter Gorlin, for about three months before that night. Edward, suspecting that this was the case, questioned his girlfriend, but while she admitted having met Gorlin once, she denied that the relationship was ongoing. Edward was not satisfied, and so he purchased a computer application to enable him to download the contents of his girlfriend’s mobile phone. As a result, it became clear that the affair between Petrellis and Gorlin had not ceased.
On the evening in question, Edward confronted Petrellis, following which Petrellis drove Edward to Gorlin’s house in a suburb of Melbourne. They could see the front light was on and it seemed people were at home, so they drove to the Westmeadows Hotel and then to Edward’s mother’s house in Gladstone Park. There Edward spoke to his brother Mark, who lived with his mother as her carer, while Petrellis remained in the vehicle. Mark went into the house and then came out to the car and got into the back seat. It was common ground that at that stage Edward was not aware that Mark had a sawn-off shotgun with him and the Crown did not allege that he had that knowledge.
The three of them then drove back to Gorlin’s house. By now it was about 9.30pm. When they pulled up and parked, Gorlin’s twin 17-year-old sons were outside the house with a friend. The Robinson brothers asked the boys where Gorlin was. Gorlin, who was inside watching television, walked to the front door. The Robinsons confronted him and pushed their way inside the house. Edward immediately started to assault Gorlin by kicking and punching him. This conduct by Edward formed the basis of the charge of aggravated burglary (intent to assault, person present), contrary to s 77(1)(b) of the Crimes Act (charge 1), and intentionally cause injury (charge 2).
At this point, Mark pulled out the sawn-off shotgun and discharged one round into the ceiling. In his statement to police, Gorlin described the shot as going right past his ear, causing a loud ringing. The forced entry and the discharge of the firearm formed the basis of charges against Mark of aggravated burglary (intent to assault, carrying a loaded firearm, contrary to s 77 of the Crimes Act) and being a prohibited person possessing a firearm.
The altercation between the three men continued and moved to the front yard, where Mark Robinson used the butt of the gun to assault Gorlin to the back of the head. This assault formed the basis of a charge of intentionally causing injury against Mark. The Robinson brothers then ran to their car and drove away. It seems by then Petrellis had fled to a neighbouring property, where the occupants called the police.
Gorlin was taken to Royal Melbourne Hospital, where he was treated for lacerations to the head, face and hands. He sustained a 6cm long injury to the left parietal region of his scalp, requiring three staples and sutures, injury leading to bloodiness to the inner aspect of his right ear as well as bruising to both the inner and outer aspects of that ear, and bruising, redness and abrasions to the face.
Police attended Gorlin’s house where they recovered a spent gunshot shell and observed a large amount of blood inside the premises.
The following day Edward was arrested by police and interviewed. He made admissions to most of the offending, although he denied knowing that his brother had the gun before they went to Gorlin’s house. Edward consented to a search by police of his house after he told them a gun and ammunition could be found there. The police found a single barrel sawn-off shotgun under the dressing table in the bedroom and a box of ammunition in the wardrobe. These discoveries formed the basis of the charge against Edward of storing a firearm in an insecure manner whilst unlicensed (charge 3) and the summary offence of possession of ammunition without a licence (charge 4).
Mark Robinson was also arrested at home the following day. In his record of interview he said he was on ‘ice’ and GBH the previous evening and had no recollection of what occurred from 8.30pm to 3.00am. A search warrant was also executed at Mark’s house, as a result of which the police seized a CCTV hard drive located in the roof cavity, methyl amphetamine and a discharged shotgun shell. Mark was also charged with possessing a drug of dependence (methyl amphetamine).
The judge’s findings
The plea was adjourned to enable a suitability report for Edward for a Community Correction Order, and a mental condition report and a potential Justice Plan for Mark as a person under a disability.
The judge found that Edward was ‘the instigator’[2] of the crimes committed by both brothers. He was the one who decided to take the law into his own hands and initially went to the scene, and then left to recruit his brother to participate in the events. At this morning’s hearing the Crown has emphasised that Edward was the instigator. The attack on Gorlin occurred at night, in his own home, and in the presence of his family. The judge accepted that Edward was not aware that Mark had the sawn-off shotgun as they travelled to Gorlin’s house, although he observed that this seemed ‘remarkable’ and the Crown’s concession on this point was ‘very generous’.[3] Nonetheless, the judge proceeded to sentence Edward on the basis that ‘he was unaware of the shotgun being in the possession of his brother, indeed was unaware of it until it was fired within the house.’[4] In other words, the judge accepted that Edward was not a party to entering the premises with the shotgun.
[2]Ibid [11].
[3]Ibid [14].
[4]Ibid.
The judge noted that the aggravating factor for the charge of aggravated burglary did not include the assault by Edward. The judge also accepted that there was no forced entry. However, he considered that this was a confrontational aggravated burglary involving a home invasion that required a sentence that reflected the need to send a message that such vigilante behaviour would not be tolerated.[5]
[5]The judge cited Hogarth v The Queen (2012) 37 VR 658, 672 [52], [54], 673 [56], 674 [62] (‘Hogarth’).
The judge noted the contrasting features of the aggravation, namely, that for Edward the aggravation lay in a person being present at the home he entered and him knowing that fact, while for Mark the factor of aggravation was entering the premises with a weapon.[6] Nevertheless, he adopted a uniform assessment of the degree of heinousness of the offending for both brothers as between mid-range and high. He said:
In accordance with the determination of the High Court in Ibbs v R, it is necessary for this Court to define, where you have a statutory offence such as this, by an analysis of the circumstances as to where such a crime sits on what was described by the High Court as the scale of heinousness. In regard to both charges of aggravated burglary, that is both charges against the Robinsons, and noting that the charge is aggravated itself insofar as Mark Robinson is concerned by the firing of the shotgun, I assess the heinousness of the culpability in regard to both Robinsons at somewhere between mid-range and high.[7]
[6]Sentencing reasons [60].
[7]Sentencing reasons [23] (citation omitted) (emphasis added).
In my reasons for granting leave to appeal in respect of Mark Robinson, I note that the Crown has asserted, and accepted, that the judge made a specific error in treating the discharge of the firearm as the aggravating factor for the offence of aggravated burglary when the conduct specified in the Indictment did not include the discharge of the firearm.
In considering the previous criminal history of the two brothers, the judge noted that Edward did not have any prior convictions recorded against him, although he had been charged previously with drug and weapons offences. By contrast, Mark had a number of prior convictions, including drug type offences and inappropriate possession of weapons, as well as breaching family violence orders. Indeed, Mark had only been released from gaol barely a month before the subject offending.
The judge further noted the early plea of Edward, that after being granted bail he had engaged in full time work, and that he had been involved in a Men’s Behaviour Change Program, had self-presented for four urine samples which were all negative, had undergone drug and alcohol counselling, and had apparently reconciled with Petrellis, who was present in court and had provided a letter of support. Nonetheless, given the objective seriousness of the offending, the judge did not consider that it was appropriate to grant a Community Correction Order in addition to a sentence of imprisonment pursuant to s 44(1) of the Sentencing Act 1991.
The judge observed that a psychological assessment of Mark showed that he has a full scale IQ of 64, which would qualify him for disability support services. He also suffers from post-traumatic stress disorder precipitated by being subjected to a home invasion involving his mother, with the result that he is hyper vigilant and has problems with trusting people. The judge noted the findings of the psychologist that Mark’s psychometric testing showed him to be in the bottom one per cent of his age peers for thinking and reasoning ability, and he would therefore have an impaired understanding of the consequences of his actions and be prone to impulsive behaviour, with such traits aggravated by his abuse of drugs. The judge found that:
although these matters would go to mitigation and reduction of culpability, it could not be said that Mr Mark Robinson had no real sense of what he was doing, as explained in Meyers. …
I accept that at the time of the offending such intellectual disability of Mark Robinson played a role in diminishing his capacity for rational judgement. No doubt, such also explains why he so willingly, and impulsively, went off on such escapade with his brother. Hence his criminal culpability for such offending is reduced. As explained in Verdins, such a determination leads to the need for a moderation of the normally implicit need for a sentence which affects punishment, general deterrence and denunciation of crimes of this sort.[8]
[8]Ibid [44]-[45].
The judge also accepted that Mark’s post-traumatic stress disorder would render him more vulnerable than a normal person to any sentence of imprisonment.
After referring to Boulton v The Queen[9] and DPP v Borg,[10] the judge said:
I find upon principle and analysis of these crimes, in regard to both Edward and Mark Robinson, that the objective criminality of the charges, in particular the aggravated burglary charges, and the intentional infliction of injury charges, is too great to allow for the disposition [involving a Community Correction Order] sought by both counsel, despite the concession made by the prosecution in regard to both prisoners.[11]
[9](2014) 46 VR 308.
[10][2016] VSCA 53.
[11]Sentencing reasons [68].
In referring specifically to Edward, the judge said:
[I]t was Edward, by his own investigations into his relationship, and use of somewhat dubious technology, who instigated this escapade, which led to this brutal attack on the victim’s home. Because of his grievance, Edward had gone and collected his brother to assist him when he’d seen that there were persons at the home. I accept that Edward received some salutary punishment. He apparently, as a result of the victim looking after himself, ended up with black eyes and a split eyelid.[12]
[12]Ibid [56].
In addressing the process of weighing up the various factors applicable to each brother, and noting that arriving at an appropriate sentence for Edward was not easy, the judge said in relation to Edward:
It has been necessary to discriminate your criminality from the type of aggravation that was involved in your brother’s crimes. However, the Court also had to take into account that you were the instigator in that matter. You were the person acting with animus, and with the desire to take vigilante action to pursue your aims insofar as the victim was concerned. It was also necessary to balance the reduced finding of culpability that I have made due to your brother’s intellectual disability, which does not apply to you.[13]
[13]Ibid [80].
Grounds of appeal
Edward Robinson seeks leave to appeal on the following two grounds:
Ground 1
The judge erred in the application of the principle of parity, in particular the judge erred by:
(i)assessing the objective criminality of the applicant’s role in the aggravated burglary as being equivalent to the co-offender;
(ii)not sentencing the applicant for the aggravated burglary on the basis there were significant material differences between the Indictments and criminal histories between the applicant and the co-offender;
(iii)cumulating a greater proportion of the sentence imposed for the charge of intentionally causing injury than that of the co-offender.
Ground 2
The individual sentence on charge 1, orders for cumulation and resulting non-parole period are all manifestly excessive in the circumstances.
Analysis – Ground 1 – specific error – parity
Edward Robinson submits that the judge erred in finding that the offending of both brothers was equivalent, that is, in the mid to high range of seriousness, when the judge had accepted that Edward was not aware that his brother possessed the shotgun until it was discharged in the house. At this morning’s hearing, counsel for Edward Robinson, Ms Mykytowycz, emphasised the significant differences between the co-offenders’ culpability given that Mark carried a shotgun when entering the house. The additional aggravating feature of the possession of the firearm was reflected in the differences in the description of the charges on the indictments. Edward relies on the observations of this Court in DPP v Bowden[14] that the fact that one co-offender carried weapons at the point of entry renders that offender’s conduct significantly more serious than that of her co-offender, justifying a substantial sentencing differential.
[14][2016] VSCA 283 [58] (‘Bowden’).
In relation to the charges of intentionally causing injury, Edward points out that his offending comprised kicking and punching, while his brother used the butt of the shotgun to strike Gorlin to the head. Edward further points to the significant differences in his criminal history compared to that of his brother.
When the orders for cumulation for the intentionally causing injury offence are considered in terms of percentage, the cumulation for Edward represents 50 per cent (six months of a 12 month sentence), while that for Mark represents 33 per cent (six months of an 18 month sentence). He says this disparity is significant given the different factual circumstances applicable.
In its written case, the Crown submits that the judge’s sentencing remarks showed that he took great care in balancing the various factors applicable to the co-offenders. He was clearly aware of the differences in relation to the possession of the weapon. But he also took into account that it was Edward who instigated the offending. Edward was acting both as a vigilante and a recruiter of another into a criminal enterprise; both these factors elevate criminality for the purpose of sentencing. Moreover, in an application of the Verdins principles, the moderation extended by the judge was justified in relation to Mark’s culpability. The judge reflected Edward’s prospects of rehabilitation and lack of prior convictions by setting a lower non-parole period for him compared to his brother.
In oral submissions the Crown conceded that, for the purposes of the leave application, where the test applied is whether a proposed ground of appeal is reasonably arguable, it accepted that leave ought be granted on the ground that the judge had erred in the application of the principle of parity. That concession was appropriately made.
In my view, it is apparent that while the judge sought to balance carefully the competing considerations relevant to the two brothers, he arguably failed to discriminate between the objective criminal culpability of Mark and Edward. There were many factors that might have tended to lengthen Mark’s sentence by comparison with Edward (the possession of the firearm being a more serious aggravating factor of the burglary; the more serious conduct founding the charge of intentionally causing injury; the more serious prior criminal history; the recent discharge from gaol), but there were also many factors in mitigation that moderated Mark’s degree of culpability and justified shortening Mark’s sentence by comparison with Edward (Mark’s tendency to impulsive behaviour; his diminished capacity for rational judgment; his post-traumatic stress disorder; and the application of Verdins). The judge ultimately considered that the circumstances warranted the same base sentence for Mark as for Edward with respect to the charge of aggravated burglary and the same number of months of cumulation in respect of the intentionally causing injury charge for both brothers, despite the variation in the sentence for that charge. In arriving at that conclusion, he made an observation about the objective criminality of offending by both brothers as ‘between mid-range and high’ on the scale of heinousness[15] without differentiating between the two. In my view, it is reasonably arguable that the judge erred in making this finding and that the significant differences between the brothers were not dealt with in accordance with a proper application of the principles of parity.
[15]Sentencing reasons [23].
I would grant leave to appeal with respect to ground 1.
Analysis – Ground 2 – manifest excess
Edward Robinson submits that the judge’s failure to distinguish the objective criminality of his conduct compared with that of his brother, together with the differences in criminal history, as well as his good prospects of rehabilitation and the positive assessment for a Community Correction Order, meant that community protection would be best served by a period of supervision in the community and that specific deterrence should have been moderated. Indeed, the prosecution submitted before the judge that a combination sentence was within range[16] although a further period of imprisonment was warranted. Edward submits that the judge placed undue emphasis on Edward’s role as instigator and as a person acting with animus, seeking to take vigilante action. Taking into consideration all these factors, he submits that the sentence imposed for aggravated burglary and the total effective sentence is manifestly excessive.
[16]Ibid [61].
In a recently filed supplementary written submission, the Crown concedes that the judge significantly devalued an important factor in mitigation. The judge found that the plea to the offence of aggravated burglary was a ‘valuable’ one. He said:
[Counsel for Mark] further put that I should also accept, and I do, that the plea in particular, in regard to the aggravated burglary, should be seen as a valuable plea. It is to be noted that there was no forced entry here. As best I can understand, one of the twin sons, who was outside when the Robinsons appeared, was asked where his father was. According to the son, he then came in to his father and said someone wants to see him. It was, at or about the time of this discussion, that the Robinsons both entered the premises, by pushing their way into the home, despite an immediate reaction from the victim. This scenario seems to be confirmed from the statement of the son, Joel and the witness Mr Mirdana. Clearly as to the first element of an aggravated burglary, it could have been foreseen that this circumstance as to trespassing could have been canvassed at a trial. It seems to me, therefore that the submission put to the Court that this should be classed as a valuable plea in regard to both Robinsons must be accepted.[17]
[17]Sentencing reasons [49] (emphasis added).
The Crown notes that the finding made by the judge was predicated on Edward Robinson foregoing a valuable defence at trial. This would appear to be the foregoing of the defence that, at the time of entry, the brothers entered at the implied invitation of Gorlin’s son, only to be told after entry by Gorlin to leave. If the defence had been acceded to at trial, only an unlawful trespass carrying a maximum penalty of six months’ imprisonment would have been made out, pursuant to s 9 of the Summary Offences Act 1966. As the Crown submits, not only was the plea valuable, the difference in the nature of the two relevant charges in question was quite fundamental.
I consider that it is reasonably arguable that insufficient weight was given to the value of the plea and, as a consequence, the sentence imposed was manifestly excessive.
Ms Mykytowycz indicated that she would wish to amend her written case to adopt the supplementary submission of the Crown that the judge had failed to impose a sentence that faithfully reflected the value of the plea. I consider that she should have leave to do so, if leave is necessary.
Furthermore, and in any event, in circumstances in which Edward had no prior convictions, pleaded guilty, showed remorse, and showed good prospects of rehabilitation, it is reasonably arguable that the sentence imposed for the offence of aggravated burglary, and therefore the total effective sentence, is manifestly excessive.
I would grant leave to appeal with respect to ground 2.
Conclusion
Leave to appeal should be granted on both proposed grounds of appeal.
The appeal in this matter should be heard at the same time and by the same bench as hears the appeal in the matter of Mark Robinson. This is important because, if the Court were to impose a lesser sentence in respect of Mark Robinson, then the sentencing discretion would re-open in respect of Edward Robinson. The Crown is alert to this. With respect to Edward Robinson, the issues of parity and of manifest excess could well be affected by any alteration in the sentence imposed upon Mark Robinson.
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