Kruzenga v The Queen
[2014] VSCA 10
•11 February 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0120
| DAVID ROBERT KRUZENGA | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 February 2014 |
| DATE OF JUDGMENT | 11 February 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 10 |
| JUDGMENT APPEALED FROM | DPP v Kruzenga (Unreported, County Court of Victoria, Judge Sexton, 31 August 2012) |
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CRIMINAL LAW — Sentence — Guilty plea — Appellant sentenced to five years’ imprisonment for armed robbery and 18 months’ imprisonment for shortening the barrel of a longarm — 12 months of sentence on shortening barrel offence cumulated upon sentence for armed robbery — Total effective sentence of six years — Whether sentence imposed on shortening barrel offence manifestly excessive — Whether excessive cumulation between offences — Sentencing judge considered shortening barrel offence as aggravating feature of armed robbery — Whether double punishment — Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J E McLoughlin | Victoria Legal Aid |
| For the Crown | Mr R A Elston SC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
I will ask Weinberg JA to deliver the first judgment.
WEINBERG JA:
The appellant pleaded guilty in the County Court at Melbourne to one charge of armed robbery (charge 1) and one charge of shortening the barrel of a longarm (charge 2).[1] The charge of armed robbery carried a maximum penalty of 25 years’ imprisonment,[2] and the charge of shortening the barrel of a longarm, a maximum of 4 years’ imprisonment.[3]
[1]Section 3 of the Firearms Act 1996 (Vic) defines a ‘longarm’ as ‘any firearm other than a handgun’.
[2]Crimes Act 1958 (Vic) s 75A.
[3]Firearms Act 1996 (Vic) s 134(1).
The appellant was sentenced to five years’ imprisonment for the armed robbery, and 18 months’ imprisonment for having shortened the barrel of the firearm. Twelve months of the sentence on charge 2 was ordered to be served cumulatively upon the sentence on charge 1. This made a total effective sentence of six years’ imprisonment. The sentencing judge fixed a non-parole period of three years and 11 months.
Pursuant to leave granted by Priest JA, the appellant now relies upon the following grounds of appeal:
1.The learned sentencing Judge erred in treating protection of the community as an important sentencing consideration.
2.The learned sentencing Judge erred in failing to give any mitigating weight to Dr Cunningham’s diagnosis that the applicant was suffering a Dysthymic Disorder.
3.The learned sentencing Judge erred in cumulating 12 months of the sentence on Charge 2.
4.The sentence imposed on Charge 2 was manifestly excessive.
5.The sentence imposed on Charge 1 (armed robbery) and the total effective sentence are manifestly excessive.
Circumstances of offending
In January 2012, several months before these offences were committed, the appellant was involved with a woman who resided in Canberra. She was the subject of an investigation by the ACT Care and Protection authorities, into the welfare of her children. The appellant gave these authorities a false account of the manner in which her children were being looked after. He was charged with the offence of ‘obstruct/hinder an investigation’. That charge was listed to be heard on 29 March 2012.
After the appellant returned to Melbourne from Canberra he sought legal advice from a firm of solicitors. He was told that representation in relation to the ACT offence would cost between $4,000 and $4,500.
The appellant’s father ran a licensed firearms business. On 23 March 2012 he went to the premises of that business and removed a double barrelled 12 gauge shotgun from the safe where it was then being stored. He returned home with the shotgun. He then proceeded to shorten both the barrel and the stock so that the weapon might more easily be concealed.
On the following morning the appellant drove his mother’s car to the National Australia Bank in Bourke Road, Camberwell. He had with him a backpack in which was concealed the shortened shotgun, a pair of dark sunglasses and a black wig.
At about 10:40 am the appellant entered the bank through the front door. At the time there were bank staff and customers present. Once the area became clear of customers the appellant approached a counter and removed the sawn-off weapon from the backpack. He pointed it at the teller and said ‘Give me the money, just give me the 20’s and 50’s’. In total, the appellant took $2,742, and put it in his backpack. He returned the shotgun to the backpack and left the bank through the rear door. He then recovered his mother’s car and drove off.
Several days later the appellant’s brother overheard him speaking on the telephone. He heard the appellant talking about a bank robbery. His brother confronted him regarding what he had heard. The appellant confessed what he had done and turned the shotgun over to his brother. It was the brother who ultimately contacted police.
On 10 April 2012 police attended the appellant’s premises and arrested him. They also recovered the backpack. The money, which the appellant claimed he had buried, was never recovered.
Conclusion
It is convenient to consider grounds 3 and 4 together. The effect of these grounds is to complain that both the individual sentence of 18 months on charge 2 and the total effective sentence of six years are manifestly excessive. It is further argued that there was excessive cumulation between the sentences on each of charges 1 and 2.
In my opinion, the sentence of 18 months’ imprisonment on the charge of shortening the barrel of the shotgun was outside the range for offending of that character, at least in the particular circumstances of this case. The maximum penalty for this offence is four years’ imprisonment and 18 months is a substantial sentence for any offence carrying only that maximum. That is particularly so in the case of an offender, such as the appellant, who has no prior convictions, is found to have good prospects of rehabilitation, and who pleaded guilty at the earliest practicable opportunity.
Perhaps more importantly, the 12 months of that 18 month sentence that was cumulated on charge 1 seems to me to have had about it some element of double punishment.
It must be remembered that the shotgun was shortened for one reason only, to enable it to be used in the commission of the armed robbery. It was necessary, in the circumstances of this case, for the sentencing judge to take great care not to treat the shortening of the weapon as both an aggravating feature of the armed robbery, and a separate and distinct offence requiring both a significant measure of punishment and a substantial degree of cumulation.
The sentencing judge, in her reasons for sentence, seems to me to have failed to have had appropriate regard to the dangers of double punishment. In her sentencing remarks, the judge said:
Next, your crimes are made more serious by the following facts about which I am satisfied beyond reasonable doubt:
·There was a high degree of planning and preparation in the days leading up to the offences, in that you:
§obtained a wig for disguise;
§obtained the weapon and shortened it;
§made a considered selection of your target on the basis of it being a bank with two entry/exit points;
§chose a day when there were less people likely to be banking and therefore likely to be less witnesses;
§waited outside the bank for about 40 minutes before entering; and
§pretended to talk on a mobile phone in the bank while looking around and waiting for the teller to become free;
·You used a disguise including sunglasses; and
·The armed robbery involved the use of a weapon at close range by pointing it at the victim, as compared to committing the armed robbery by merely having the weapon on you.
[emphasis added]
I note that it was conceded on the plea that some measure of cumulation was necessary between the two offences. With respect, that concession appears to me to have been entirely proper. The act of shortening a longarm is itself a serious matter, even without it resulting in the use of that weapon in the commission of a further offence.
At the same time, her Honour’s comments regarding the degree of such cumulation are somewhat curious. She said, inter alia:
Because you could not have committed the armed robbery in the way that you did without committing the other offence of shortening the barrels so that the shotgun could be hidden in your backpack until you drew it to frighten the teller, there will be considerable cumulation between Charges 1 and 2.
The judge took the view that the appellant’s act of shortening the weapon made his ‘crimes’ more serious. Plainly, her Honour treated that act as an aggravating feature of the armed robbery, as well as an offence in its own right. To describe it as an ‘aggravating feature’ would have been an apt assessment, so far as the armed robbery was concerned, had that offence stood alone. However, there was a clear need to avoid giving significant weight to that factor, when sentencing for the armed robbery, in circumstances where there was to be a separate and substantial punishment for the firearm offence as well.
It can also be seen that her Honour regarded the obvious connection between the two offences as justifying a greater measure of cumulation than might otherwise be the case. For my part, I would have thought that the close links in question warranted less, rather than greater, cumulation.
When it is seen that as much as two-thirds of the 18 months imposed on charge 2 was made cumulative upon the five years imposed on charge 1, it becomes apparent that there was, unwittingly, a measure of double punishment in the sentences imposed.
I should say that I would reject grounds 1 and 2, as well as the first limb of ground 5. The sentence of five years imposed on the charge of armed robbery, given the objective gravity of that offence, was clearly within range.
Despite the appellant’s argument in support of ground 1, protection of the community was an important sentencing consideration in dealing with his offending. The appellant was assessed as a moderate risk of re-offending. That finding, which is not challenged, means that protection of the community remains an important consideration. So too does the need for general deterrence. This was, after all, a premeditated robbery of a bank which involved the use of a sawn-off shotgun. Not surprisingly, the bank teller who was threatened with the weapon was traumatised, and has been profoundly affected by his experience.
I can see no error in the sentencing judge’s treatment of the evidence given by Dr Cunningham regarding the appellant’s Dysthymic Disorder. That condition had no role to play in the commission of these offences, and was not such as to give rise to any Verdins[4] considerations.
[4]R v Verdins (2007) 16 VR 269.
The sentencing judge found that the appellant had good prospects for rehabilitation given his family support, his capacity and willingness to work and his previous good character. I see no reason to doubt that finding.
In all the circumstances I would set aside the sentence of 18 months imposed on charge 2. I would substitute a sentence of 12 months’ imprisonment for that offence. I would order that four months of that sentence be served cumulatively upon the sentence of five years imposed on charge 1, which I would reaffirm, making a total effective sentence of five years and four months. I would fix a non-parole period of three years and three months.
I should say, for the sake of completeness that had the appellant not pleaded guilty, I would have considered a total effective sentence of seven years and six months, with a non-parole period of five years, to be appropriate.
I would confirm all other ancillary orders.
REDLICH JA:
I agree.
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