Farrugia v The Queen
[2011] VSCA 201
•30 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0200
| MARTIN ROBERT FARRUGIA | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NEAVE, REDLICH and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 June 2011 | |
DATE OF JUDGMENT: | 30 June 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 201 | |
JUDMENT APPEALED FROM: | DPP v Farrugia [2010] VCC 0884 (Judge Wood) | |
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CRIMINAL LAW – Sentencing – Blackmail, armed robbery, robbery and handling stolen goods – Same victim for all offences – Two counts of blackmail related to two letters containing similar threats sent by applicant on same day – Whether double punishment to order cumulation between those counts – Pearce v The Queen (1998) 194 CLR 610 considered – Whether sentence of four years’ imprisonment manifestly excessive for armed robbery which was a ‘ruse’ – Applicant’s sons committed similar type of offences against same victim – Whether broad principle of equal justice enlivened as between the applicant and his sons – Farrugia v The Queen [2011] VSCA 24 considered – Whether applicant’s sons’ offending relevant to applicant’s sentence.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L C Carter | C D Traill Lawyers |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
BONGIORNO JA:
We have had the advantage of reading Redlich JA’s reasons in draft. We agree with his Honour, for the reasons he gives, that the sentences imposed on counts 2 and 5 were manifestly excessive and that, as a consequence, the application for leave to appeal must be granted and the appeal allowed.
However, in our view, the applicant should be re-sentenced to a higher sentence on the armed robbery count than Redlich JA proposes. The maximum term of imprisonment which can be imposed for armed robbery is 25 years.[1] Although the amount stolen was not large, the offence was premeditated. The victim’s home was entered at 1.30 am in the morning after the victim had gone to bed, by two men, one of whom was carrying a sawn-off shotgun. The offence was calculated to, and did, induce terror in the victim, whose evidence at the plea hearing was that he had written out the cheque because ‘I was a bit terrified’. The victim also said that the gun had been occasionally pointed at him although it was mainly pointed at the applicant. As the judge observed ‘the effect of having a sawn off shot gun bandied about in one’s home would cause even the most robust citizen to be traumatised and suffer consequential distress’.[2]
[1]Crimes Act 1958 s 75A.
[2]DPP v Farrugia [2010] VCC 0884, [27].
Even if the victim suspected that the armed robbery were a ruse to extract money from him by threatening the applicant, he would not have known how far the two men were prepared to go. Further, the armed robbery created a risk that the victim would panic and react spontaneously to the threat, with serious consequences. The applicant must have been aware of this risk.
The applicant has a considerable number of prior court appearances and convictions, including convictions for offences involving violence. The judge did not consider that he had good prospects of rehabilitation. Even having regard to the applicant’s guilty plea, we respectfully disagree with Redlich JA that a sentence of
two years and six months’ imprisonment on the armed robbery count would sufficiently reflect the gravity of this offence.
In our opinion, the applicant should be re‑sentenced to three years’ imprisonment on count 2. Having regard to the principle of totality, we do not differ from Redlich JA’s view that 12 months of this term of imprisonment should be cumulated on the base sentence. Thus, the total effective sentence which we have arrived at is the same as that which his Honour would impose.
REDLICH JA:
Martin Robert Farrugia pleaded guilty to three counts of blackmail, one count of armed robbery, one count of handling stolen goods and one count of robbery in the County Court at Melbourne and following a plea in mitigation was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Blackmail
(s 87 Crimes Act 1958)15 Years 3 years 15 months 2 Armed Robbery
(s 75A Crimes Act1958)25 Years 4 Years Base sentence 3 Blackmail
(s 87 Crimes Act 1958)15 Years 2 Years 6 months 4 Blackmail
(s 87 Crimes Act 1958)15 Years 2 Years 6 months 5 Handling stolen goods
(s 88 Crimes Act 1958)
15 Years 3 Years 15 months 6 Robbery
(s 75 Crimes Act 1958)15 Years 30 months 12 months Total Effective Sentence: 8 Years 6 months imprisonment Non-Parole Period: 6 Years Pre-sentence Detention Declared: 214 days 6AAA Statement: 11 years imprisonment with a non-parole period of 8 years imprisonment
The applicant now seeks leave to appeal against that sentence.
Circumstances of the offending
The facts giving rise to the present offences are as follows. Between August and September 1999 the applicant made unwarranted demands of the victim for money with menaces on seven occasions, with the result that on one occasion the victim handed the applicant $150 in cash, and on the other six occasions he wrote out cheques, totalling $18,500, which he gave to the applicant. The victim did this because he was frightened of and intimidated by the applicant because the applicant would threaten to go to the police and tell them of things that the victim was alleged to have done in the early 1980s when they first met (count 1 – rolled up count of blackmail). The applicant admitted these offences when questioned by investigating police.
On 17 September 1999, two men, one holding a sawn off shotgun, entered the victim’s house while the applicant was there with the victim. They demanded money from the applicant to settle debts which they claimed the applicant owed them. The victim wrote out a cheque for $8,000 and handed it to the person with the shotgun. The applicant later admitted to police that he had made a plan with the men two days earlier to stage a hold up of the applicant in the presence of the victim with the aim of obtaining money from the victim (count 2 – armed robbery).
In 2000, the victim began to receive a number of letters from the applicant demanding various amounts of money for various reasons. Two of those letters were dated 14 August 2000. In part, the letters demanded payment of money and referred to the applicant attending the victim’s home if the money was not paid. Other threats were made in letters to do or say various things or have people (not specified in court as to who those people may be) come to the victim’s home (counts 3 and 4 – blackmail). The applicant admitted writing those letters when questioned by police.
The count of handling stolen goods related to the proceeds of a robbery committed by Matthew Farrugia (the applicant’s son) against the same victim. Some of the funds obtained from the victim by Matthew Farrugia were transferred to the applicant’s TAB Account. The transactions took place on six separate occasions, being 22, 24 and 26 November 2006, 14 December 2006 and 12 and 23 January 2007 and totalled $6,500.00 (count 5 – rolled up count of handling stolen goods).[3]
[3]It was not in issue on the appeal that by virtue of the definition of ‘goods’ in s 71 and ss 90(2)(b) and s 90(4) of the Crimes Act 1958 the applicant, by receiving into his account money which had been stolen, had handled stolen goods within the meaning of s 88.
On 10 December 2006, the victim drew a cheque for $5,000 payable to the applicant. The applicant told the victim he needed to pay for kidney surgery. The victim acceded to the demand because of the aggressive nature of the request and his fear as to what might happen if he refused, based on the history that the victim had with the applicant dominating him over a long period of time (count 6 – robbery).
Personal circumstances of the applicant
The applicant was, as was apparent from his TAB records, a heavy gambler. The prosecution contended that he used much of the money obtained from the victim to feed his gambling habit. The applicant claimed that he used the money to fund his children’s education.
The victim impact statement revealed that the victim was a man of frail health, having had a number of cardiac episodes. The applicant, while not responsible for the victim’s health conditions, was aware of the poor health of the victim.
Matthew Farrugia had pleaded guilty to offending against the victim that commenced in 2002 and ceased in 2007. One of the applicant’s other sons, Adam Farrugia, had also pleaded guilty to offending against the victim that occurred between February 2006 to September 2007. Matthew was aged from 17 to 22 at the time of his offending, and Adam was between 24 and 25 years of age at the time of his offending.
The applicant’s trial was originally listed for hearing on 27 October 2009, to proceed jointly with the trials of his sons Matthew and Adam. The applicant failed to appear and a warrant was issued for his arrest. The trial was adjourned to 28 October 2009 on which day Matthew and Adam Farrugia pleaded guilty. They were both sentenced on 31 March 2010. The applicant was apprehended a few days later and appeared before the court on 18 November 2009. His trial was adjourned and the applicant was remanded in custody. A fresh presentment was filed on 9 April 2010 and pleas were entered to the five charges.[4]
[4]DPP v Farrugia [2010] VCC 0884, [1]–[3].
Adam Farrugia pleaded guilty to two counts of robbery (one of which was a rolled up count) and one charge of false imprisonment before the same judge. He was sentenced on 31 March 2010 to a total effective sentence of three years’ imprisonment, and to serve a minimum non-parole period of one year and nine months’ imprisonment. This was reduced on appeal[5] to a total effective sentence of two years and six months’ imprisonment, to serve a minimum non-parole period of 18 months’ imprisonment. He was ordered to pay $3,935.74 in compensation to the victim.
[5]Farrugia v The Queen [2011] VSCA 24.
Matthew Farrugia pleaded guilty to one (rolled up) count of robbery, one count of indecent assault and one count of armed robbery. Matthew Farrugia was sentenced on 31 March 2010 to a total effective sentence of five years’ imprisonment, and to serve a minimum non-parole period of three years’ imprisonment. He was ordered to pay $142,000 in compensation to the victim. Matthew Farrugia did not appeal his sentence.
Both sons had been sentenced by the same judge who was to sentence the applicant. The Crown contended that the applicant and his two sons had treated the victim as a ‘cash cow’ because he was easily stood over when demands were made of him for money. While the Crown eschewed any suggestion that the applicant and his sons committed any of the offences against the victim jointly or as part of a ‘common criminal enterprise’[6] it submitted during the plea that the sentencing judge should treat the applicant as the principal offender. With the exception of the facts giving rise to count 5, the only connection between the applicant’s offences and those of his sons was that they all concerned the same victim.
[6]See the discussion of this term in Farrugia v The Queen [2011] VSCA 24.
The applicant’s criminal history is fairly lengthy and involves nine findings of guilt and 54 convictions from 19 court appearances between November 1977 and December 2005. Of those convictions, 41 were for dishonesty, six for violence, three for failing to answer bail, three for street offences and one offence of arson. The sentencing judge took particular note of two previous County Court appearances in 1991 and 1995 for which the applicant received suspended sentences for offences including false imprisonment, threat to inflict serious injury, theft, obtaining property by deception and handling stolen goods, as well as a Magistrates’ Court appearance in 1995 for which the applicant received a six month suspended sentence for offences including assault, failing to answer bail, using threatening words in a public place, obtaining property by deception and handling stolen goods.
Although the counts related to offending in 1999 (counts 1 and 2), 2000 (counts 3 and 4), 2006 and 2007 (counts 5 and 6), the prosecution opening, which was set out in the sentencing remarks, made detailed reference to the circumstances in which the applicant had met the victim in 1980 and his association with the victim until 1983. Given the importance that this early history appeared to assume during the plea and on sentence, those facts should be summarised.
On a date in 1980, the victim had parked his car and gone to a café. While in the café he saw his car being broken into and went to the car. The young males breaking into the car ran away. The victim discovered the glove box had been rifled through and service documents bearing his name and address had been taken. The next day there was a knock on the victim’s door and the victim recognised some of the people as those who had broken into his car. He did not answer the door. On a later occasion when the victim answered his door, a number of males (who have not been charged or identified on any material before the court) emerged from around the corner and entered his home. The applicant was one of those people.[7] It was under these circumstances that the applicant met the victim.
[7]DPP v Farrugia [2010] VCC 0884, [7]–[8].
From 1980 to 1983, the applicant and his associates (persons who were not Adam or Matthew Farrugia, and were not identified in the material before the court) visited the victim approximately every fortnight. During that time the victim was made to drive the applicant and his friends to various places, including football matches and horse and dog race meetings where the applicant and others gambled. The applicant and his de facto partner also moved into the victim’s flat for a period of time. The nature of the relationship was one of domination by the applicant over the victim. In 1983, the victim was offered employment and moved to Avenel. The victim did not tell the applicant where he was going. The victim did not see the applicant for 16 years until 1999, when the applicant and another member of his former group arrived at the victim’s home, having tracked the victim through a source at VicRoads.[8] In 1999, the victim was a little over 60 years of age.
[8]Ibid [10]–[12].
Double punishment on counts 3 and 4
Under cover of ground 1 the applicant contends that the sentencing judge doubly punished the applicant by ordering that six months of the sentences imposed on the blackmail counts 3 and 4 be served cumulatively on the base sentence, given that both offences were committed on the same day and contained similar threats.
In my view the order for cumulation did not infringe the rule against double punishment discussed in Pearce v The Queen[9] and R v Orgill.[10] No specific complaint is made that it was not open to the Crown to lay a separate count with respect to each of the blackmail letters. The sending of the letters were distinct acts, each of which constituted the offence of blackmail. To order some cumulation between those counts did not constitute double punishment and was entirely within the sentencing judge’s discretion, notwithstanding that they were part of one course of conduct.
[9](1998) 194 CLR 610, 614, 624, 628–9.
[10][2007] VSCA 236, [14].
Sentences on counts 2 and 5 manifestly excessive, and sentence offends totality principle
Under ground 2 complaint is made that the individual sentences on counts 2 and 5 were manifestly excessive, and that the extent of the orders for cumulation, and the resulting total effective sentence, offend the principle of totality.
Relevance of fact armed robbery was a ‘ruse’
It was not in issue that there was an unusual feature of the armed robbery, in that the threat was not directed towards the victim but towards the applicant who was a party to the offence and looking to trick the victim into parting with his money. The sentencing judge observed in his sentencing remarks that the victim in his evidence at the committal had accepted the explanation of the armed robbery, proffered by the applicant in his interview with police, that the applicant had pretended to be threatened by the armed robbers and had told the victim that the applicant owed the robbers a sum of money, and after this the victim had written out a cheque for $8000.[11] It was therefore submitted, both on the plea and on the appeal, that count 2 was not a serious case of armed robbery warranting a sentence of four years’ imprisonment, as the offence lacked the features that ordinarily make armed robbery such a repugnant offence. Counsel no doubt had in mind the type of considerations discussed in DPP v Kennedy[12] where it was said:
The frequency with which armed robberies come before the Court should not deflect attention from the fact that it is a particularly serious offence, because of the impact of threatened violence upon its victims and because the use of a weapon carries with it the risk of serious injury or death. Generally they are offences of such gravity that they call for a condign sentence. Where they are carefully and professionally planned and executed, they will ordinarily be viewed as more deserving of exemplary punishment.[13]
The observations made by the sentencing judge during the plea, and the sentence imposed, suggest that the sentencing judge was not attracted by the submission and considered the applicant’s conduct to be a serious example of the offence.
[11]Ibid [19]–[20].
[12](2008) 21 VR 431.
[13]Ibid 440 (citations omitted).
During oral argument on the appeal, the applicant also drew attention to the evidence of the victim that he suspected that the robbery was a ‘ruse’, and submitted that it should be inferred from his evidence that the victim was not in fear at the time of the robbery. It was not entirely clear from the prosecutor’s opening or the victim’s evidence when it was that the victim first came to the realisation that the robbery was a ‘ruse’. Of course the applicant by his plea must be taken to have admitted the elements of the offence. It is unnecessary to resolve whether the element of the offence was satisfied because, as part of the pretence, the men used some force on the applicant, or whether it was because the victim was in fear of the use of force on the applicant. In either event, because, as between the robbers and the applicant, being the person threatened with violence, the threats were a sham and it was not in contemplation that the victim would be threatened, the offence did not have a number of the characteristics normally present upon the commission of such an offence.
Whether the sentence on count 5 offended the broad principle of equal justice
The sentence on count 5 was also said to be manifestly excessive as the amount received by the applicant was in total $6,500. Under cover of ground 3 the applicant further contended that ‘the sentence of three years’ imprisonment imposed on count 5 offended the broad principle of equal justice when compared to the sentence of three years’ imprisonment imposed on Matthew Farrugia in relation to the same course of offending’.
The application of the principle of equal justice where offenders are neither co-offenders nor participants in a joint criminal enterprise was discussed in Farrugia v The Queen.[14] The applicant relied upon the following passage from the joint judgment:
The appellant’s alternate argument was that, even if the brothers were not in a common criminal enterprise, there was a sufficient nexus between, and such important common features of the brothers’ offending that the principle of equal justice required that Matthew’s sentence should have been given significant weight in fixing the appellant’s sentences.
There is considerable force in that submission. While the general principle of consistency of sentencing is achieved by a consideration of comparable cases which inform the range of sentences applicable, the essential and different characteristic of the parity principle requires the alteration of one sentence to conform with that of a related offender. But there will be circumstances in which the principles of consistency and parity become so closely related that the principles of equal justice may dictate that the sentence under question should be brought into line, or more closely conform, with the sentence imposed on an offender for a related crime. Such reasoning need not be confined to co-offenders or a common criminal enterprise. Once one has regard to the purposes of sentencing, automatic consequences need not necessarily follow from the presence or absence of particular factual circumstances. The discretionary decision must be made in light of the circumstances of the individual case.
If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight.
The common features of the brothers’ offending and their connection required the sentencing judge to achieve an appropriate relativity between their respective sentences. The appellant had committed six robberies over one and a half years using the same threats and intimidation as his brother. He had stolen a total of $3935.70. Matthew had robbed the same victim on 18 occasions over a period of five years, and stolen $142,000. There was no material difference in their personal circumstances save that Matthew had a history of non-compliance with court orders. Yet the appellant received a sentence only four months less than Matthew for the robberies each had committed.
The Crown accepted that there was no discernible rational explanation for what otherwise appears to be a lack of due proportion between the sentences passed on the appellant and his brother. The appellant has a justified sense of grievance arising out of the disparity between his sentences and that of his brother. The fundamental principle of equal justice that inheres in the exercise of judicial power required some relativity between the sentences imposed upon them.[15]
[14][2011] VSCA 24.
[15]Ibid [25]–[29] (citations omitted).
The applicant’s submission in this regard must be rejected. There were insufficient common features of the sons’ offending and that of the applicant under count 5 that brought into play this aspect of the principle of equal justice. Quite apart from any other difference, the nature of the offences of robbery and handling stolen goods are fundamentally different.
Relevance of applicant’s knowledge of, and responsibility for sons’ offending
Despite the respondent’s contention that no broad notion of parity should be applied as between the sons and the applicant, it still sought to rely upon the relationship between the applicant and his sons in support of the sentence on count 5. It submitted that such a sentence, though stern, could be justified particularly as the sentencing judge accepted that the applicant was aware that the monies paid into his TAB account by his sons came from the victim.
Although the applicant disputed that it was open to the sentencing judge to find that the money came from the victim, the evidence entitled his Honour to reach such a conclusion. But the prosecution made a sustained submission on the plea that it was the applicant who introduced his sons to the notion that the victim was an easy target, and repeated on the appeal that the applicant should be viewed as the principal offender who, if not legally, was morally responsible for his sons’ conduct. The prosecutor reminded his Honour that during the sons’ plea hearings, his Honour had said that the applicant had nourished in his sons an attitude of criminal disposition towards the victim.
Those facts could only be relevant in a very limited way, as could the early history of the applicant’s relationship with the victim. Those matters would not justify a sentence which included a component of punishment for the role of the applicant in his sons’ offending. It seems that his Honour was influenced by the history of the applicant’s association with the victim and the influential role which the applicant was asserted to have played in the offences committed by his sons. This is reflected in the sentencing remarks which, without qualification, referred to the Crown submission that the applicant was the principal offender. His Honour went on to state that on the evidence before him, it was clear that the applicant had introduced his sons to the victim who ‘in turn took a leaf out of [the applicant’s] book’.[16]
[16]DPP v Farrugia [2010] VCC 0884, [36].
The objective gravity of the offences the subject of counts 2 and 5 was not to be coloured either by the conduct of the applicant’s sons or the applicant’s conduct twenty years earlier. The sentences on counts 2 and 5 were not merely stern as the respondent submitted. For the reasons I have given, I consider that the sentences imposed on counts 2 and 5 were manifestly excessive.
I would therefore re-sentence the applicant on counts 2 and 5. I would affirm the sentences imposed on counts 1, 3, 4 and 6, but would make different orders for cumulation. In addition to those matters referred to by the sentencing judge as matters that mitigate the sentence, the applicant had agreed to a compensation order for the amount he had obtained from the victim and this should also be taken into account. The applicant is being held in protective custody and that fact as well as health issues makes custody more onerous for the applicant.
I would therefore re-sentence the applicant as follows:
Count 1 Blackmail 3 years
Count 2 Armed robbery 2 years 6 months
Count 3 Blackmail 2 years
Count 4 Blackmail 2 years
Count 5 Handling stolen property 12 months
Count 6 Robbery 2 years and 6 months
I would order that 12 months of the sentence on count 2, six months of the sentence on count 3, six months of the sentence on count 4, six months of the sentence on count 5 and 12 months of the sentence on count 6 be served cumulatively on each and on the sentence imposed on count 1, making a total effective sentence of six years and six months’ imprisonment. I would fix a non- parole period of four years and six months.
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