Green v The Queen

[2011] VSCA 371

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0467
MATTHEW LEIGH GREEN	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE JA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	14 November 2011
DATE OF JUDGMENT	14 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 371
JUDGMENT APPEALED FROM	DPP v Green (Unreported, County Court of Victoria, Judge Sexton, 14 December 2010)

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CRIMINAL LAW – Appeal against sentence – Armed robbery – Sentence of imprisonment four years and eight months manifestly excessive having regard to current sentencing practices – Appellant resentenced – No point of principle.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

BEACH AJA:

Introduction

1. On 8 December 2010, the appellant pleaded guilty to one charge of armed robbery and one charge of theft.  The appellant also pleaded guilty to seven summary charges:  one of going equipped to steal, one of possessing a prohibited weapon, three of possessing a controlled weapon, one of using a drug of dependence and one of driving an unregistered motor vehicle.  A plea was heard, and on 14 December 2010, her Honour Judge Sexton sentenced the appellant to four years and eight months’ imprisonment on the charge of armed robbery, six months’ imprisonment on the theft charge, two months’ imprisonment on the charge of going equipped to steal, two months’ imprisonment on the charge of possessing a prohibited weapon charge, 14 days’ imprisonment on each of the charges of possessing a controlled weapon and fourteen days’ imprisonment on the charge of using a drug of dependence.  Additionally, her Honour fined the appellant $500 in respect of the charge of driving an unregistered motor vehicle.  Her Honour ordered three months of the six months of the sentence for theft to be served cumulatively with the sentence for armed robbery and made no further orders for cumulation, making a total effective sentence of four years and eleven months’ imprisonment, and directed that the appellant serve a non-parole period of three years.

1. The appellant appeals[1] against the sentence he received.  The ground of appeal is that the learned sentencing judge erred by imposing:

(a)a term of imprisonment on charge one (armed robbery);

(b)a term of imprisonment on charge two (theft);

(c)an order for cumulation on charge two;  and consequently

(d)a total effective sentence;  and

(e)a non-parole period;

[1]Pursuant to leave granted on 17 June 2011.

which were each manifestly excessive in light of current sentencing practices and the circumstances personal to the appellant.

Circumstances of the offending

1. On Sunday 6 June 2010, the appellant and his co-offender, Sandy Mamonitis, arranged to commit an armed robbery.  They met at the Alamein train station, and the co-offender brought a large kitchen knife with him.

1. The appellant drove them to Burwood, where he removed number plates from a car parked in the street and attached its number plates to his car (charge 2 – theft).

1. The appellant and his co-offender drove to a Caltex service station in Burwood.  The co-offender walked into the service station, produced the kitchen knife he had concealed in his pants and demanded cash from the service station attendant (charge 1 – armed robbery).  The service station attendant gave the co-offender all the notes in the till.  A sum of $480 was taken.  The co-offender walked out of the store and ran to the car where the appellant was waiting and they drove off.  There was CCTV footage of the armed robbery.

1. The appellant and his co-offender then purchased heroin and cocaine.  They drove to another street in Burwood where they removed the stolen number plates from the appellant’s car, used the cocaine and injected heroin.

1. The police found the appellant and the co-offender whilst on patrol in the early hours of 7 June 2010.  The police searched the vehicle and found the stolen number plates, a knuckleduster (summary charge – possess prohibited weapon), two box cutters and a pocket knife (summary charges – possess controlled weapon x 3), and a screwdriver (summary charge – going equipped to steal).  The appellant was arrested and interviewed by police.  He initially lied but eventually made full admissions to police.  He admitted having used heroin that evening (summary charge – use drug of dependence).

The ground of appeal

1. In the sole ground of appeal, the appellant makes complaint that the armed robbery sentence, the theft sentence, the order for cumulation, the total effective sentence and the non-parole period was each manifestly excessive in the light of current sentencing practices and the circumstances personal to the appellant.

1. At the plea hearing, it was established that the appellant came from a stable family and continued to enjoy good relationships with his parents and siblings.  He completed Year 12 and maintained a very good work record after that, obtaining a number of certificates and qualifications.  He began using cannabis at the age of 13, and was a regular user by the age of 15.  This usage increased until he ceased using cannabis at the age of 23. He was almost 26 years of age at the time of the offending the subject of this appeal.

1. The appellant began using heroin at the age of 16.  He appeared in Court on several occasions between 2003 and 2006 for drug offences, dishonesty offences, a driving offence and assault charges.  As her Honour found, all of these arose out of the appellant’s drug use.

1. Prior to sentencing, the appellant had attended treatment to overcome his drug addiction over the years – but had suffered many relapses.  He ceased using heroin at the age of 21 following the birth of his son.  However, the appellant’s relationship with his son’s mother broke down and this resulted in him recommencing heroin use.  In May 2010, shortly before his current offending, the appellant lost his job.

1. The appellant submitted that the sentences imposed upon him and the order for cumulation were manifestly excessive, given that:

(a)the offending the subject of her Honour’s sentences was committed whilst the appellant was on a “downhill spiral”;

(b)the appellant’s moral culpability fell to be viewed as different to that of an offender motivated by greed;

(c)the appellant made admissions (albeit not immediately) to investigating police, and further facilitated the course of justice by entering pleas of guilty (including pleas to a drug offence which was seemingly committed by, but not charged against, the appellant’s co-offender) at an early stage;

(d)the appellant had expressed considerable shame and remorse for his offending;

(e)the appellant had engaged with the Court Integrated Services Program very successfully, achieving abstinence from the use of illicit drugs, stabilising his mental health and, during that time, recommencing full-time employment;

(f)the appellant (as was accepted by the learned sentencing judge) had prospects for rehabilitation;  and

(g)the appellant had not previously served a custodial sentence.

1. All of these matters may accepted.  However, the ground of manifest excess can only succeed if the Court is satisfied that:

A sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified.  To succeed on this ground, the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable.  It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[2]

[2]Hanks v R [2011] VSCA 7, [22] (Bongiorno JA).

1. For the reasons we have given with respect to the co-offender (Sandy Mamonitis), in the circumstances of the appellant to which we have just referred, and because of the requirements of the principles of parity, we are of the view that the sentence imposed on the armed robbery charge was outside the permissible range.  This means that the sentencing discretion is re-opened.

1. In the circumstances, we would re-sentence the appellant as follows:  three years’ imprisonment on the charge of armed robbery, four months’ imprisonment on the theft charge, two months’ imprisonment on the charge of going equipped to steal, two months’ imprisonment on the charge of possessing a prohibited weapon, 14 days’ imprisonment on each of the charges of possessing a controlled weapon and 14 days’ imprisonment on the charge of using a drug of dependence.  Additionally, the appellant will be fined $500 in respect of the charge of driving an unregistered motor vehicle.  The only order for cumulation that will be made is two months of the sentence for possessing a prohibited weapon will be cumulated on the three year sentence for armed robbery, making a total effective sentence of three years and two months’ imprisonment.  We will fix a non-parole period of two years and two months’ imprisonment.

1. (Discussion ensued.)

NETTLE JA:

1. The orders of the court are as follows: 

1.     The appeal is allowed. 

2.     The sentences passed below are set aside. 

3.The appellant is resentenced as follows. 

Charge 1	Three years' imprisonment;
Charge 2	Four months' imprisonment;
On the Summary Charge of going equipped to steal	Two months' imprisonment;
On the Summary Charge of possessing a prohibited weapon	Two months' imprisonment;
On each of the Summary Charges of possessing a controlled weapon	14 days' imprisonment;
On the Summary Charge of possessing a drug of dependence	14 days' imprisonment, and
On the Summary Charge of driving an unregistered vehicle	Fined $500.

4.It is ordered that two months of the sentence imposed on the summary charge of possessing a prohibited weapon be cumulated on the sentence imposed on charge 1, making a total effective sentence of three years and two months. 

5.A non‑parole period of two years and two months is set. 

6.It is declared pursuant to s 6AAA that but for the appellant's plea of guilty he would have been sentenced to a total effective sentence of four years and nine months with a non‑parole period of three years and two months. 

7.It is declared that the number of days already served under the sentence is 342 days not including this day and it is directed that that declaration and its details be entered in the records of the court.

8.All ancillary orders made below are confirmed. 

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