Green v The Queen

[2011] VSCA 236

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0344

DALE JONATHON GREEN

v

THE QUEEN

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JUDGES	NETTLE JA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	10 August 2011
DATE OF JUDGMENT	10 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 236
JUDGMENT APPEALED FROM	R v Green (Unreported, County Court of Victoria, Judge Jenkins, 8 September 2010)

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CRIMINAL LAW – Sentence – Armed robbery and theft – Whether total effective sentence of seven years’ imprisonment with non-parole period of five years manifestly excessive – Whether non-parole period of five years invited appellate scrutiny – Appeal dismissed – R v Detenamo [2007] VSCA 160, Romero v R [2011] VSCA 45 considered.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr S Kenny	Victorian Aboriginal Legal Service
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. This is an appeal against a total effective sentence of seven years’ imprisonment, with a non-parole period of five years, imposed on the appellant on pleading guilty to one count of armed robbery, one count  of theft of a motor car, and one count of cultivating a narcotic plant (cannabis).

The facts of the offending

(i)     Charge 1 – Armed robbery

1. On Saturday 6 June 2009 the appellant and his stepbrother (‘the co-accused’) drove around the Fawkner area and discussed finding a suitable business at which to commit an armed robbery.  They identified a milk bar situated at 56 Tyson Street in Fawkner at the corner of Lowson Street and Tyson Street.  A short time later they returned home to 6 Marlborough Street, Fawkner, where the co-accused took possession of a .22 sawn-off rifle, a balaclava, a black hooded jacket and gloves. 

1. At approximately 6.10 p.m., the appellant, acting as the driver, parked the car in Lowson Street some 50 metres east of the milk bar.  The co-accused instructed him not to stop if they were pursued by police. 

1. The co-accused exited the vehicle wearing the disguise and carrying the loaded sawn-off rifle.  He walked around the shop front and entered the milk bar.  He confronted victims, Youssef Hanna and Tong Tong Xu who were working in the milk bar, and aggressively demanded cash from the cash register.  The co-accused pointed the firearm at Hanna and Xu.  Yan Yang, who was also present in the milk bar, fled and took refuge at the rear of the shop.  When Hanna did not act quickly enough, the co-accused fired a shot over Hanna's head;  the bullet piercing the cigarette cabinet behind the victim and lodging in the wall.  The co-accused tried to jemmy open the cash register with a pair of scissors.  When he could not get it open, he used the scissors to cut the electrical power cord.  He then carried the cash register, containing approximately $1200 in cash, from the milk bar to the waiting vehicle around the corner, and placed the cash register in the rear of the car.  The appellant and his co-accused returned to 6 Marlborough Street, Fawkner, where they counted the cash. 

1. Messrs Hanna, Xu and Yang all suffered emotional trauma and shock as a result of the armed robbery. 

1. When first arrested on 15 June 2009, the appellant denied involvement in the robbery.  On 6 January 2010, however, he was arrested again and at that time made full admissions as to his involvement. 

(ii)    Charge 2 – Theft

1. The appellant also made full admissions of having stolen a Subaru WRX motorcar in Lalor.  Police identified that the only theft of a WRX in Lalor at the relevant time had occurred on 5 August 2009 from a spot opposite the Lalor Secondary College.  The owner of the car had lost his keys some time before the theft.  During the record of interview, the appellant stated that an associate had found keys;  that he (the appellant) was approached to take the car, that he and ‘Con’ drove past the address some five times on different days before sighting the car;  and that they used the keys to enter and steal the car.  He did not know what had become of the car.  He said he stole it because he ‘was asked to’ and that he ‘owed [a woman] a lot of money’, and that he felt ‘quite intimidated’.

(iii)   Charge 3 – Cultivation of a narcotic plant (cannabis)

1. When the appellant was arrested, the police found cannabis at his address.  The appellant said that he had five grams in the laundry for his own personal use;  that when he moved into that address, there were three small cannabis plants already there, having been left there by the previous occupant ‘Steven’;  and that he decided to let them keep going to ‘see what they’d do’. 

1. The judge sentenced the appellant as follows: 

Charge	Offence	Max Pen	Ind Sentence	Cumulation
Charge 1	Armed Robbery	25 years’ imp.	6 years’ imp.	6 years (base).
Charge 2	Theft	10 years’ imp.	2 years’ imp.	1 year
Charge 3	Cultivate narcotic plant	1 year’s imp/20 penalty units	2 months’ imp & fine of $1,000.	Nil.
TES:	7 years’ imp.
NPP:	5 years.

Grounds of appeal

1. There is only one ground of appeal.  It is that the judge erred in fixing a non-parole period which is disproportionately high and manifestly excessive in view of the following mitigating factors:

(a)In his second interview, the appellant made extensive admissions as to his offending;

(b)He pleaded guilty and indicated an intention to do so at an early stage;

(c)He was aged only 24 at the time of the offending;

(d)Following his arrest in January 2010, he resumed his relationship with his partner and attempted to deal with his drug and alcohol abuse;

(e)He had demonstrated a willingness to engage with Correctional Services, to make a genuine effort to abstain from illicit drug use and to support his partner and children;  and

(f)He had served a three-month sentence for offences committed in the same timeframe as the current offences. Thus, totality had an extra dimension to it.

1. Counsel for the appellant submitted that the non-parole period (of five years) is very high in absolute terms and particularly striking inasmuch as it represents over 71 per cent of the total effective sentence (of seven years). 

1. While recognising that there is no single correct non-parole period, counsel invite observations of Redlich JA in R v Detenamo[1] as support for his contention that a non-parole period of 70 per cent is at the higher end of the spectrum and that, because of the mitigatory factors which operate in this case, a non-parole period at the lower end of the spectrum is called for.  In counsel's submission anything more than, say, 55 to 60 per cent of the total effective sentence (or in other words about four years), is bound to exceed the result dictated by a proper balance between competing factors, and thus the period of five years set by the sentencing judge is manifestly excessive. 

   [1][2007] VSCA 160, [18]–[28] (Redlich JA, with whom Warren CJ and Maxwell P agreed).

1. Just as, if not more, importantly, counsel contended, a non-parole period of not more than four years would ensure scope for a long period of supervision by the Adult Parole Board, so that the appellant might more readily reintegrate into the community upon his release, which counsel submitted would be of greater benefit to the community than a lengthier period of imprisonment.

The Crown’s position

1. When the matter was before the sentencing judge, the prosecutor submitted that the appellant's offending warranted a total effective immediate custodial sentence of six to seven years’ imprisonment with a non-parole period of four to five years.  The sentence which the judge imposed accorded to that submission.  Now that the matter is on appeal, however, the Crown has changed its stance.  It says that the appeal should be allowed and the non-parole period should be varied to four years, on the basis that, although the appellant presents with an appalling criminal

   
   

   history, it needs to be balanced against the appellant's dysfunctional upbringing, homeless existence since he was 11 years old, and significant mental health issues. 

1. As the Crown would now have it, it is also important to keep in view that despite the appellant's challenging start in life, he was able to manage to avoid re-offending for a period of three years before this offending.  He remained motivated to extricate himself from the criminal path to provide for his young family. His partner continued to support him and visit him in gaol twice a week, together with their children, and the relationship is considered to be such as to reduce the appellant's risk of re-offending. And the appellant had severed ties with the co-accused, and successfully engaged in services to assist in conducting himself more positively and pro-socially.  Those factors, it is contended, reveal a real and not fanciful capacity to reduce re-offending and reflect reasonable prospects of rehabilitation. 

1. The problem with the judge’s reasoning, it is submitted, is that, although her Honour appears to have taken each of those factors into account, she gave insufficient weight to the report of Natasha Colman, an alcohol and other drug counsellor at Moreland Hall (which was to the effect that the appellant had demonstrated considerable effort and progress towards rehabilitation in order to reduce risks of re-offending), and placed too much weight on the more guarded assessments of psychologist, Warren Simmons, and psychiatrist, Dr Adam Deacon.  In counsel's submission, the opinion of Ms Colman ought to have been preferred because she had six months contact with the appellant following a referral through the Broadmeadows Koori Court, whereas Mr Simmons and Dr Deacon’s assessments were each based on a single consultation, and, in the case of Dr Deacon, it was conducted by way of video link.

No error demonstrated

1. I do not find the appellant’s or the Crown’s submissions to be at all persuasive.  In my view there is nothing prima facie excessive about a non-parole period of five years in relation to a total effective sentence of seven years’ imprisonment for counts of armed robbery and theft of the nature and gravity here in issue committed by a seasoned offender.  Allowing that non-parole periods tend to be in the range of between 60 per cent and 75 per cent of head sentence, it does not follow that a non-parole period of 71 per cent of a head sentence is excessive or even likely to invite appellate scrutiny.  Where the ratio of the non-parole period to the head sentence exceeds 75 per cent, the absence of an explanation may invite appellate scrutiny. But, even then, because there is no set formula or fixed standard for setting a non-parole period, it does not inevitably lead to the conclusion that the sentencing judge has erred.[2] 

   [2]Romero v R [2011] VSCA 45, [25] (Redlich JA, Buchanan and Mandie JJA agreeing).

1. In this case, the judge gave detailed consideration to the factors which led her Honour to conclude that a non-parole period of five years was necessary.  They included general and specific deterrence, community protection, rehabilitation, denunciation and just punishment.  Principal among those were the prospects of rehabilitation, and as to those the judge accepted the Crown's submission that there were serious concerns.   With respect  her Honour was right to do so.  According to the objective indicia, there were serious doubts about the appellant’s prospects of rehabilitation and those doubts were supported by the opinions of Mr Simmons and Dr Deacon.  Nor was there any necessary inconsistency between their opinions and that of Ms Colman. Ms Colman was of the opinion that the appellant had demonstrated an ability to manage stressful and negative events without resorting to substance abuse or offending behaviour.  No doubt that was a more optimistic assessment than those of the other two experts. But, even then, it was anything but a ringing commendation.  It was and is to be understood in the context in which it was expressed, and it is evident from the judge’s sentencing remarks that her Honour regarded it in just that fashion.  

Conclusion

1. With respect I see no error in the judge's reasoning or her conclusion that a non-parole period of five years was warranted.

1. Accordingly, I will dismiss the appeal.

ROBSON AJA:   

1. I agree.

NETTLE JA: 

1. The order of the Court is that the appeal is dismissed.

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