Livingspring v Kliger Partners

[2008] VSCA 9

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 176 of 2007

THE QUEEN

v

AYTEC OZBEC

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JUDGES:	BUCHANAN, NETTLE and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2008
DATE OF JUDGMENT:	31 January 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 9

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Criminal law – Sentencing – Armed robbery and other offences – Offender 24 years of age at date of sentence – Whether sentencing judge was in error as to time of entry of plea of guilty – Whether sentencing judge failed to give sufficient regard to youth and rehabilitation – Sentence of three years’ imprisonment with non-parole period of 12 months – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Dr S McNicol	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis	T Magazis and Assocs

BUCHANAN JA:

1. I will ask Kellam JA to deliver the first judgment.

KELLAM JA:

1. On 28 May 2007 the applicant pleaded guilty before the County Court to one count of armed robbery, one count of theft, two counts of obtaining property by deception and one count of possessing a drug of dependence.  He was sentenced to the following terms of imprisonment:

·Count 6      -   armed robbery – two years and six months’ imprisonment.

·Count 8      -     theft – six months’ imprisonment.

·Count 9      -     obtaining property by deception – six months’ imprisonment.

·Count 10     -     obtaining property by deception – six months’ imprisonment.

·Count 11     -   possession of a drug of dependence – one month’s imprisonment.

1. The sentencing judge ordered that three months of the sentence imposed on count 8 and three months of the sentence imposed on count 9 be served cumulatively upon each other and upon the sentence imposed on count 6.  That resulted in a total effective sentence of three years’ imprisonment.  The sentencing judge fixed a minimum period of 12 months’ imprisonment to be served before the applicant became eligible for parole.  The applicant seeks leave to appeal the sentence imposed upon him. 

The facts

Count 6 – armed robbery

1. On 23 October 2006 the applicant drove his Toyota car, which had stolen number plates attached to it, to a milk bar in Mulgrave.  He was in company with Scott Carmichael and Todd Keith.  Upon arrival at the milk bar the applicant entered the shop in order to see who was working there and generally to survey the premises.  He then returned to his vehicle.  Carmichael and Keith then entered the milk bar wearing disguises.  Keith was armed with a knife in the shape of a samurai sword and Carmichael was armed with an iron bar.  A female attendant was approach by Keith who pointed the knife in her direction and demanded the contents of the cash register.  The female attendant gave a total of approximately $250 to Keith.  Before leaving the premises Carmichael stole a laptop computer and an iPod from a desk.  The applicant’s co-offenders then ran out of the store and were driven away by the applicant who was waiting outside in his car.  These circumstances are the factual basis of count 6, a count of armed robbery. 

Count 8 - theft

1. On Wednesday 25 October 2006 the applicant, together with Carmichael and another person, attended at the Myer store in Eastland and stole clothing valued at $848.  This event forms the factual basis of count 8, the count of theft.

Count 9 – obtaining property by deception

1. Approximately an hour after the incident at the Myer store at Eastland, the applicant and another person attended upon the Myer store at the Knox Shopping Centre and obtained refunds valued at $474 for some of the items of clothing which had been stolen an hour earlier from Myer at Eastland.  These circumstances form the basis of count 9, the count of obtaining property by deception.

Count 10 – obtaining property by deception

1. Approximately an hour later the applicant and another person attended at the Myer store at Chadstone and likewise obtained refunds valued at $448 for some of the clothing which had been stolen from Myer at Eastland.  This matter forms the factual basis of count 10, the count of obtaining property by deception.

Count 11 – possession of a drug of dependence

1. At 5 pm on the same date the applicant, in company with Carmichael, purchased heroin from an unknown male in Springvale and went to a park in Noble Park where they used the heroin.  This is the factual basis for count 11, the count of possession of a drug of dependence. 

1. Later on 25 October 2006 the applicant was arrested by police in Springvale, taken to the Dandenong police station and interviewed.  He admitted his involvement in the offences. 

The personal background of the applicant

1. The applicant was aged 23 years at the time of the commission of the offences.  He was aged 24 years at the time of sentence.  He had appeared previously on charges of theft and burglary at the Magistrates’ Court at Dandenong in November 2000 and on charges of handling stolen goods and obtaining property by deception at the Magistrates’ Court in Dandenong in September 2004.  On each occasion he had been sentenced to be released on entering into a bond to be of good behaviour for a period of 12 months.  His parents are of Turkish origin. 

1. The applicant was brought up in Clayton and completed 12 years of education, although he failed his year 12 examination.  Thereafter he attended the Holmesglen TAFE and completed two years of a building design and architecture course.  He did not finish the course.  He told Ms Lechner, a psychologist who examined him for the purpose of his plea, that he was on drugs at the time and struggling to attend classes.  He worked thereafter with his uncle as a carpenter on a casual basis.  He provided a history to the psychologist that he had commenced smoking marijuana at the age of approximately 15 years and subsequently commenced to use heroin intravenously. 

1. The sentencing judge accepted that at the time of the commission of the offences the applicant had had a serious heroin addiction.  Evidence was before her Honour that the applicant’s family had taken steps to remove him from the environment by sending him to Turkey for rehabilitation.  However, upon his return to Australia he had relapsed.  Before her Honour there was evidence of steps taken by the applicant to rehabilitate himself by engaging in the CREDIT Bail Program and by arranging for a naltrexone implant. 

The submissions of the applicant

1. The applicant seeks leave to appeal the sentence imposed upon him on the following grounds:

1.        The learned sentencing judge erred by sentencing the applicant on the basis that;

(a)       he pleaded guilty at the committal hearing;  and

(b) by reason of (a) failed properly to apply s 5(2) of the Sentencing Act 1991.

2.        Ground 2 of the full statement of grounds is not pursued.

3.        The learned sentencing judge erred by failing adequately to synthesise, and reflect in the ultimate disposition, the applicant’s (a) youth, (b) rehabilitation achieved;  and  (c) prospects for continued rehabilitation.

Ground 1

1. In the course of her sentencing remarks the sentencing judge stated:  ‘When interviewed by police you disclosed your role and you pleaded guilty to all the charges at the committal hearing which was by way of a straight hand up brief’.  It is submitted on behalf of the applicant that her Honour was in error in stating that the applicant had pleaded guilty ‘at the committal hearing’.  In the course of the plea a chronology was provided to her Honour.  That chronology revealed that the applicant had pleaded guilty at the first committal mention on 17 January 2007.  Counsel for the applicant informed her Honour that in consequence of pleading guilty at the committal mention, the proceeding ‘went straight to hand up brief’.  In his submissions, counsel for the applicant stated specifically that the applicant had ‘entered his plea at the earliest opportunity’. 

1. Furthermore it should be observed that the applicant was presented before her Honour at the same time as other co-accused persons.  One of those persons, Todd Keith, had pleaded guilty at the same time as had the applicant.  His counsel in the course of the plea made on his behalf informed the sentencing judge that both the applicant and his client, Keith, had pleaded guilty at the first committal mention on 17 January 2007.  In the course of sentencing Keith, her Honour stated that Keith had pleaded guilty to all the charges at ‘the first mention in January 2007’.  In the course of his plea, counsel for the applicant said:  ‘On 17 January, like Mr Keith … Mr Ozbec pleaded guilty to all the charges the subject of the counts before this Court today’. 

1. Notwithstanding the fact that the sentencing judge used the words ‘committal hearing’ when perhaps more accurately she should have said ‘committal mention’, it appears to me that it is clear and beyond argument that her Honour was fully aware of the fact that the applicant had pleaded guilty at a committal mention.  In fact there was no such committal hearing.  The fact that she said that the committal hearing took place ‘by way of a straight hand up brief procedure’ makes it clear that she did not consider there to have been a hearing.  There can be no doubt that she knew that the applicant had pleaded guilty at the same time as had Keith and there can be no doubt that she was clearly aware of the fact that Keith had pleaded guilty at the first committal mention. Furthermore it should be observed that Keith who was younger than the applicant, and who also had a limited criminal history and had shown signs of rehabilitation was sentenced to 3 years’ imprisonment for his part in the armed robbery.  In my view there is no basis to say that the sentencing judge made any error as to the time at which the applicant had entered his plea of guilty.

Ground 3

1. It is submitted that her Honour failed take into account adequately the youth, rehabilitation and prospects for continued rehabilitation of the applicant.  It is submitted that the applicant, who was 23 years of age when he committed his offences and had no prior convictions and who had a serious heroin addiction at the time of the commission of the offences, should not have been sentenced to  immediate imprisonment.  It is submitted that the evidence before her Honour was that the applicant had performed well on the CREDIT Bail Program, had been candid with his family and his psychologist about minor lapses since he commenced to attempt to cease his heroin use, that he had moved from his suburb and from the influences that had provided the background to his addiction, and to his offending, and that he had a support network to facilitate the steps towards rehabilitation.  Furthermore, at his own instigation and expense he had arranged for a naltrexone implant. 

1. It is clear in my mind that her Honour was conscious of each of these matters.  She stated specifically that whilst on bail the applicant had paid for a naltrexone implant.  She noted with approval the ‘very good progress’ made by the applicant whilst on the CREDIT Bail Program.  She observed that rehabilitation was a matter of ‘great importance’.  She said ‘You have addressed this quite successfully whilst on bail and you deserve credit for that, which will be reflected in the minimum period I shall require you to serve’.  She referred in some detail to Ms Lechner’s psychological report and her conclusion that the applicant was emotionally immature.  She referred in detail to the evidence given by the applicant’s uncle as to the endeavours of the applicant to cease drug use.  However, she concluded that the circumstances of the armed robbery were such that a term of imprisonment was the only appropriate sentence.  In my view her Honour was not in error in reaching this conclusion.

1. The applicant provided his car which had stolen number plates attached to it for the purpose of the robbery. The placing of stolen number plates on his car

reflected a degree of planning and premeditation. He entered the milk bar for the purpose of reconnaissance.  Having done so, he returned to his car.  His two disguised accomplices then entered the premises, one armed with an iron bar and the other armed with a knife in the shape of a samurai sword. The female attendant was no doubt terrified by the armed robbery which followed.  The applicant waited in his car as the robbery took place and upon its completion he drove away with his accomplices. The applicant played a significant part in the commission of a serious offence. Notwithstanding his relative youth and prospects of rehabilitation the sentencing judge was entitled to form the view that in all the circumstances this offence called for a custodial sentence to be served by the applicant.  The sentences imposed in respect of each of the other counts were open to the sentencing judge and, in my view, the cumulation of a total of six months’ imprisonment in respect of counts 8 and 9 cannot be said to be beyond the range of sentences which were open.

1. It is apparent that the sentencing judge gave substantial weight to the prospect of the applicant’s rehabilitation by fixing a non-parole period of 12 months, being one third of the head sentence.

1. I would refuse the application.

BUCHANAN JA:

1. I agree.

NETTLE JA:

1. I also agree.

BUCHANAN JA:

1. The order of the Court is that the application for leave to appeal against sentence is refused.

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