Lyddy v The Queen
[2019] VSCA 35
•5 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0137
| ANDREW LYDDY | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU JA and TAYLOR AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 January 2019 |
| DATE OF JUDGMENT: | 5 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 35 |
| JUDGMENT APPEALED FROM: | DPP v Lyddy [2018] VCC 861 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Sentence – Armed robbery – Attempted armed robbery – Robbery – 13 separate offences over two-week period – Total effective sentence of eight years and one month’s imprisonment with non-parole period of five years and seven months – Whether judge erred in finding appellant had no remorse – Assessment of remorse made with respect to appellant’s state of mind at the time of offending – Appeal allowed – Broadbentv The Queen [2009] VSCA 320 applied – Barbaro v The Queen (2012) 226 A Crim R 354 considered.
CRIMINAL LAW – Appeal – Sentence – Armed robbery – Attempted armed robbery – Robbery – No victim impact statements tendered – Whether judge erred in considering likely impact upon victims – Whether sentence manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Edney | James Dowsley and Associates |
| For the Respondent | Mr J Gullaci | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
TAYLOR AJA:
Introduction and summary
On 2 May 2018 the appellant pleaded guilty to 11 charges of armed robbery; one charge of attempted armed robbery; and one charge of robbery. The maximum penalty for each of these offences is 25 years’ imprisonment,[1] 20 years’ imprisonment[2] and 10 years’ imprisonment[3] respectively.
[1]Crimes Act 1958, s 75A(1).
[2]Crimes Act, ss 75A(1), 321M and 321P.
[3]Crimes Act, s 75(1).
On the same day, after hearing the plea, the judge imposed a total effective sentence of imprisonment of eight years and one month, with a non-parole period of five years and seven months, in accordance with the following table.[4]
[4]DPP v Lyddy [2018] VCC 861 (‘Sentencing remarks’).
Charge Offence Sentence Cumulation 1 Armed robbery 42 months 6 months 2 Armed robbery 42 months 6 months 3 Armed robbery 42 months 6 months 4 Armed robbery 39 months 3 months 5 Armed robbery 42 months 6 months 6 Attempted armed robbery 40 months 3 months 7 Armed robbery 42 months 6 months 8 Armed robbery 44 months Base 9 Armed robbery 42 months 6 months 10 Armed robbery 40 months 3 months 11 Robbery 24 months 2 months 12 Armed robbery 40 months 3 months 13 Armed robbery 40 months 3 months Total effective sentence 8 years, 1 month’s imprisonment Non-parole period 5 years, 7 months Pre-sentence detention 277 days Section 6AAA statement 12 years, 3 months’ imprisonment with non-parole period of 9 years, 3 months
On 18 July 2018 the appellant filed notice of application for leave to appeal against sentence on three grounds:
Ground 1: The sentencing judge erred by finding that the appellant had not demonstrated remorse for his offending.
Ground 2: The sentencing judge erred in speculating as to the likely impact of the offending upon the victims and the reasons why the victims did not file victim impact statements.
Ground 3: The individual sentences and orders for cumulation produced a non-parole period and total effective sentence that are manifestly excessive.
On 2 October 2018 Priest JA granted leave to appeal against sentence on all grounds.
For the reasons that follow, the appeal will be allowed and the appellant will be resentenced as set out at [76] below.
Circumstances of the offending
Over the two-week period between 31 August 2017 and 17 September 2017, the appellant targeted 13 shop attendants at various petrol stations, an adult products store and a bottle shop from which he stole sums of money, consumable items and a mobile phone. On eight occasions he used a syringe — usually blood-filled — and on four occasions he used a knife. On one occasion he intimated the presence of a weapon in his pocket.
The sums of money stolen ranged between about $107 and $1,000. The instances of offending increased in frequency throughout this period; the final eight offences occurred in a 48-hour period.
The appellant was highly affected by the drug ‘ice’ throughout the period of the offending.
The circumstances of the individual offences were as follows.
Charge 1: armed robbery — Temptations Sex Shop Hallam
On 31 August 2017 at about 10:26 pm, the appellant attended the Temptations Sex Shop in Hallam, which was then open for business.
Prior to entering the store, the appellant drew blood from his arm into a syringe. Once inside, he approached the front counter whilst holding the blood-filled syringe in his hand, before pointing it at the store attendant and demanding money from the cash register. The attendant handed $300 to the appellant, who then fled the store.
Charge 2: armed robbery — Caltex service station Seaford
On 7 September 2017 at about 8:50 pm, the appellant entered the Caltex service station in Seaford and removed a bottle of Coke from the fridge before taking it to the counter. The store attendant scanned the bottle and asked for payment of $3.95 from the appellant. He removed a blood-filled syringe from his pocket, pointed it at the attendant and demanded all the money from the till, saying ‘if you don’t want to get hurt, do as I say’.
When the attendant opened the till, the appellant leaned over the counter and took $500 cash before fleeing the store.
Charge 3: armed robbery — 7/11 service station Lysterfield
On 8 September 2017 at about 2:00 am, the appellant entered the 7/11 service station in Lysterfield and removed a bottle of Coke from the fridge and a packet of painkilling tablets from the shelf, before taking those items to the counter. As the store attendant scanned the bottle of Coke, the appellant removed a blood-filled syringe from his pocket, pointed it at the attendant and demanded the money from the till.
The attendant gave the appellant access to the till. The appellant took $250 worth of notes and coins before fleeing the store.
Charge 4: armed robbery — 7/11 service station Hampton Park
On 10 September 2017 at about 12:50 am, the appellant entered the 7/11 service station in Hampton Park and removed a bottle of Coke from the fridge. He waited two to three minutes for customers to leave the store before going to the front counter. There he produced a small knife and demanded money from the store attendant.
The attendant opened the cash register and handed $200 to the appellant, who then fled the store.
Charge 5: armed robbery — Caltex (Woolworths) service station Hampton Park
On 14 September 2017 at about 7:35 pm, the appellant entered the Caltex (Woolworths) service station in Hampton Park, removed a bottle of Coke from the fridge and then placed it on the counter. The store attendant stated that bottles of Coke were on special offer and it would be economical for the appellant to buy two. The appellant then demanded the money from the till. The attendant refused.
The appellant stepped closer to the counter and removed a blood-filled syringe from his jacket. He pointed it at the attendant and said ‘if you don’t cooperate, I will have to attack you. I will kill you and take the money myself.’
The attendant scanned the bottle of Coke to open the cash register. The appellant told the attendant to put the cash in a bag while he continued to brandish the syringe. The attendant put $107 worth of notes and coins plus the bottle of Coke in the bag, before the appellant took it and fled the store.
Charge 6 — attempted armed robbery — United service station Dandenong South
On 15 September 2017 at about 9:40 pm, the appellant entered the United service station in Dandenong South and, upon seeing five customers inside, asked the store attendant if he could use the toilet. After exiting the toilet, the appellant removed a number of food and drink items from the shelves and placed them on the counter. The attendant scanned the items and asked for payment of $89.11. The appellant produced an empty syringe, pointed it at the attendant and said ‘put the money in the bag as well’. The attendant refused.
The appellant then threatened to ‘poke’ the attendant, and made stabbing movements with the syringe at the attendant from about a metre away. The attendant said he was not afraid as there was a truck outside, whose driver was going to enter the store shortly. Upon seeing that there was a truck being filled at the bowsers outside, the appellant fled the store.
Charge 7 — armed robbery — 7/11 service station Officer
On the same day at about 11:10 pm, the appellant entered the 7/11 service station in Officer and removed a number of food and drink items from the shelves before placing them on the counter. The store attendant scanned the items and asked the appellant for payment of $109.88. The appellant produced a blood-filled syringe from behind his back, pointed it at the attendant and demanded all the money from the till.
Eventually the attendant opened the cash register and gave $205 to the appellant, who then fled the store.
Charge 8 — armed robbery — BP service station Springvale
Some hours later, on 16 September 2017 at about 1:27 am, the appellant entered the BP service station in Springvale, removed a number of food and drink items from the shelves and placed them on the counter before asking the store attendant for a packet of cigarettes. The attendant scanned the items and requested payment of $98.00. The appellant produced a syringe that contained a white-coloured substance, pointed it at the attendant and demanded all the notes and gold coins from the cash register as well as the attendant’s mobile phone.
The attendant placed $250 worth of notes and gold coins in a plastic bag but said that he did not wish to surrender the phone, as it had been a gift from his father. The appellant again demanded the phone and the attendant complied. The appellant then demanded the attendant remove the password from the phone. The attendant attempted to remove the password and reset the phone before handing it to the appellant. The appellant left the store with the cash, phone, and food and drink items.
The appellant walked around the corner and used the attendant’s phone to call a taxi.
Charge 9 — armed robbery — United service station Dandenong
A short time later at about 2:35 am, the appellant arrived by taxi at the United service station in Dandenong. He entered the store and waited in line behind a customer. As the customer left, the appellant approached the counter and asked the store attendant for a packet of cigarettes. As the attendant obtained a packet from behind the counter the appellant produced a blood-filled syringe and demanded that he be given all the money from the till. The attendant gave the appellant about $1,000 in notes from the till.
The appellant returned to the waiting taxi and was driven away.
Charge 10 — armed robbery — United service station Clayton
Later on 16 September 2017, at about 7:05 am, the appellant caught a taxi to the United service station in Clayton. Upon entering the store, he approached the store attendant, produced a knife and demanded cash from the till. The attendant gave the appellant $450, before the appellant returned to the taxi and was driven away.
A few minutes later, the appellant observed a marked police divisional van behind the taxi and directed the taxi driver to turn down side streets. Once the taxi was out of sight of the divisional van, the appellant told the taxi driver to stop. He got out and walked away.
Charge 11 — robbery — Royal Oak Hotel Cheltenham
Again on 16 September 2017, at about 6:10 pm, the appellant entered the Thirsty Camel bottle shop in the Royal Oak Hotel in Cheltenham and asked for two bourbon and Coke cans from the store attendant. The attendant placed the items in a bag. The appellant, with his hands in his pockets, told the attendant to place all the money from the till into the bag.
The attendant, fearing that there was a weapon in the appellant’s pocket, placed $347 cash into the bag. The appellant left the store carrying the bag containing the alcohol and cash.
Charge 12 — armed robbery — 7/11 service station Frankston
Later still on the same day, at about 9:19 pm, the appellant was picked up by a taxi at an address in Hallam and driven to the 7/11 service station in Frankston. At about 10:30 pm he entered the store and waited for three customers to leave before approaching the counter with food items he had selected from the shelves. The appellant produced a 25 cm long knife and said to the store attendant ‘give me the money or I’ll stab you’.
The attendant placed approximately $500 cash in a bag and gave it to the appellant. As he exited the store, the appellant told the attendant not to open the door to two people he saw outside before returning to the waiting taxi. The appellant instructed the taxi driver to go to several locations before eventually stopping at the United service station in Seaford.
Charge 13 — armed robbery — United service station Seaford
The appellant arrived at the United service station in Seaford at about 12:36 am on 17 September 2017. As he entered the store, the attendant asked the appellant to remove the hood of his hoodie. He did so.
The appellant removed a bottle of Coke from the fridge, placed it on the counter and asked for three packets of cigarettes. As the cigarette packets were placed on the counter, the appellant produced a knife from the pocket of his hoodie, pointed it at the attendant and directed that he be given the notes from the till and the cigarettes.
The attendant placed $200 cash on the counter. The appellant took the money and the cigarettes and returned to the waiting taxi.
Record of interview
On 17 September 2017 the appellant was arrested and interviewed. He admitted committing the armed robberies over the previous fortnight and said that he did so in order to pay drug debts. The appellant further admitted to using the drug ‘ice’ in small amounts every few days. He also expressed remorse for his offending.
Upon the hearing of this appeal, it was submitted on behalf of the appellant that we should watch the video recording of the record of interview, particularly to assist in the resolution of ground 1. The Crown acquiesced in that course. Accordingly, we have done so.
Personal circumstances
The appellant was born on 11 June 1985. He was 32 years of age at the time of the offending.
The appellant, who has two siblings, was raised by his mother after his father left the family home when the appellant was aged about 18 months. The appellant’s mother raised the three children despite suffering a chronic illness. The appellant had no contact with his father until he was aged 12, and such contact that did then occur was disappointing to him.
Also at the age of 12 the appellant began to abuse both alcohol and illicit drugs. He left school in or after Year 10 and had a steady work history, although the precise details of that are not clear. It seems that the appellant worked variously as a cabinetmaker, bricklayer and baker. It also seems that the appellant’s abuse of alcohol and drugs did not impact upon his ability to maintain employment.
The appellant has children from a previous relationship. Although the timing is unclear, it would seem that he separated from his former partner in about July 2017 and was thereafter denied access to those children. At that stage he began heavy daily usage of ‘ice’. That notwithstanding, he formed a new relationship and his partner fell pregnant with twins prior to this offending. She miscarried at the time the appellant was arrested and charged.
The appellant’s ‘ice’ usage had increased significantly in the weeks leading up to and during the period of offending.
Dr Karen Scally, a neuropsychologist, stated in a report tendered on the plea hearing, that the appellant ‘presents with symptoms of anxiety and depression in the extremely severe range and severe levels of stress’. Further, he met the criteria for a provisional diagnosis of post-traumatic stress disorder and he had ‘prominent maladaptive personality traits’ which may justify a probable diagnosis of ‘Personality Disorder — Not Otherwise Specified’. The report stated that the appellant expressed remorse for his offending.
The appellant has a criminal history limited to two prior matters, one each in 2008 and 2011. Neither was serious enough to warrant the recording of a conviction.
Sentencing remarks
The judge said that the offending was motivated by a desire to get money for drugs, but was nonetheless ‘purposeful’.[5] Her Honour said that whether the money was to pay off an existing debt or to buy more drugs mattered little, as the appellant’s ‘ice’ habit was not mitigating of his conduct.
[5]Sentencing remarks [8].
With respect to the issue of remorse, the judge said:
When interviewed, you told the police that you were aware of the impact on your victims. You spoke of seeing the fear in the face of one young victim. You spoke of appreciating how intimidating you appeared, as you had intended. It is all very well, once caught, to express remorse for and appreciation of the intended impact on your victims. But I do not accept that you did not think of that before you entered each of these places and did what you did.
In my view, you simply did not care enough about the harm to your victims. You were making conscious choices to do whatever it took to get the money that you wanted. Hence, your expression of remorse or regret afterwards, to me, rings hollow. The more likely explanation to me is that having found how easily you could get your way and get the money, after the first time you threatened a shop attendant with a syringe filled with blood, you resolved to continue to obtain drug money whenever you needed it in the same way. It suited you more than going without.
I do not accept the expression of regret you made to the police when interviewed or all of the expressions of regret that you have made since then as evidence of remorse, as that term is understood by the criminal law, even though you said so to police and have maintained since being charged that you are remorseful for the impact on your victims.
You knew exactly what you were doing and you intended to cause fear, and you were aware at the time that you were achieving your aim. To say, when interviewed, and afterwards you are sorry, I do not think is properly to be characterised as an expression of remorse. It is no more than a recognition that you did what you intended to do and achieved your intended aim.
At best, or kindest, it might be said that you were acknowledging your victims were collateral damage, that is that you bore none of them any personal ill will but you were prepared to sacrifice their sense of safety in order to obtain money for ice.
Your knowledge at the time and indeed in the planning for the commission of these offences that they would be terrified, and then saying after the event you are sorry just does not cut it. Such awareness of the fear that you intended to cause and did, in fact, cause is, in my view, an indicator of cruel selfish heartlessness, not of remorse.[6]
[6]Sentencing remarks [24]–[29].
As regards the impact of the appellant’s offending upon the victims, the judge noted that on each occasion, the victim was the only person working in the shop. Given the nature of the businesses in which they worked, there was no barrier between any of them and members of the public other than a counter. Security measures were limited to the installation of CCTV.
Her Honour said that no victim had made a victim impact statement, but it was not necessary to have such statements to understand the fear each of them must have or would have been likely to have experienced. Her Honour continued:
It is notable in my view that all but two of the victims had names suggesting that they or their family’s country of origin was the Indian subcontinent. The name of one of the victims suggested Chinese ethnicity. It leaves me wondering, in this case, if the victims are vulnerable not only because of the relatively unprotected places in which they were working and where it would appear the best security available or the best security offering was CCTV to monitor offending after the event, or for other reasons as well. I do not know whether they were reluctant to make victim impact statements because of uncertainty about their visas, whether they had residence or were on visas which prohibited or limited the amount of time that they could spend in employment, or that they are vulnerable workers simply because they were not aware of their rights.
Whatever their circumstances, that is not something that will adversely affect your sentence. I am doing no more than hypothesising about the circumstances of your victims. But it is an all too common phenomenon that we see in this court when dealing with armed robberies of this nature, involving night shift console operators with names that indicate they are not of Anglo-Australian ethnicity and who do not make victim impact statements. It is a matter of common knowledge that many of the people who work as night shift console operators are people here on student visas who are often either concerned about whether they might be accused of working hours greater than those allowed under their student visas or who are otherwise vulnerable people unaware of their rights or too afraid to complain.
It is a matter of real concern because they certainly do not seem to be able to be sufficiently organised as a group to be able to lobby their employers to make their workplaces safer.[7]
[7]Sentencing remarks [21]–[23].
The judge recognised that given the number of offences, 11 of which were completed armed robberies, both the individual sentences and the orders for partial cumulation needed to be moderated to give effect to the totality principle. Her Honour stated that she differentiated between the use of the syringe and the knife on the basis that the threat of transmission of a blood-borne disease if a victim did not comply with the appellant’s demands was an aggravating feature. Her Honour also considered the circumstances of charge 8 were aggravated by the appellant taking the mobile telephone of the store attendant, which was his personal possession.
The judge acknowledged a degree of artificiality in the individual sentences and the orders for partial cumulation but said that the sentence must reflect the overall reality of the number and nature of the charges and the fine distinctions and relatively small periods of time that differentiate them.
Ground 1 — Remorse
Parties’ submissions
The main focus of the appeal was ground 1.
The appellant contended that he had expressed or demonstrated remorse, subsequent to his arrest, in four separate ways. First, by his demeanour and words during the record of interview. Second, by his statements to Dr Scally at the time her report was prepared in November 2017. Third, by his conduct in custody to the date of the plea hearing in so far as he participated in available programs not only directed to drug addiction, but also to personal development. And fourth, at the time of the plea hearing in May 2018. He submitted that the judge erred in finding that he had not demonstrated remorse for his offending.
Counsel appearing for the appellant at his plea (different from counsel who appeared for him at this appeal) referred to, but did not tender, a document authored by the appellant as to his remorse. Counsel said that the appellant had given him ‘instructions about his remorse’.
The following exchange then took place during the plea hearing:
HER HONOUR: You did mention to me before, your client had written a letter. Having had a chance to speak to him and see that ---
COUNSEL: Yes.
HER HONOUR: --- is that something that you wanted to provide?
COUNSEL:It’s — I won’t Your Honour. It’s repetitive in the sense of the submissions — it reinforces the submissions and I hear your Honour’s words ---
HER HONOUR So it’s consistent with your instructions?
COUNSEL Consistent with my instructions.
HER HONOUR Consistent with what you’ve put to me?
COUNSEL Yes.
HER HONOUR You could say he’s put it into words as well as giving you instructions but other than that, are you saying that it’s your view that it doesn’t add to what you’ve already put to me?
COUNSEL Yes, Your Honour. That’s the view.
The appellant also submitted that her Honour erred in finding that, by his repeated, purposeful offending, he exhibited a lack of consideration for his victims inconsistent with remorse at the time of the offending. The appellant relied upon the observations of this Court in Broadbent v The Queen.[8] The appellant submitted further that this error in turn infected the judge’s assessment as to remorse in the aftermath of the offending, such as to lead her to conclude the appellant totally lacked remorse.
[8][2009] VSCA 320 [13]–[15] (‘Broadbent’).
The respondent submitted that although the treatment of remorse by the judge was ‘unorthodox’ and her Honour placed much weight on the appellant’s state of mind at the time of offending, the point actually made by her Honour was simply that the appellant had time between each offence to consider his actions. He either did not or, having done so, nevertheless decided to continue offending in a manner intended to cause fear to the victims.
The respondent submitted further that while there was evidence capable of supporting a finding that the appellant had demonstrated remorse subsequent to the last offence, as contended by the appellant, the judge was not bound to accept it. The evidence of remorse derived from the report of Dr Scally was thin and the instructions of the appellant to his then counsel, documented in the untendered letter, were self-serving.
However, the respondent accepted that the reason her Honour rejected the evidence of later expressed remorse was not derived from the state of the evidence, but because of the lack of remorse demonstrated by the appellant at the time of offending. The respondent, quite fairly and properly in our view, conceded that given the circumstances of this case, one would expect her Honour to have made a finding that the appellant had some measure of remorse.
Legal authority
For some time, courts have drawn a distinction between the sorrow of an offender for being caught and punished, and the regret of an offender for the harm caused by his or her actions. Only the latter is remorse for sentencing purposes. If such remorse is to be relied upon as a mitigating factor, the burden falls upon an offender to identify evidence of it.
In Barbaro v The Queen,[9] this Court said the following:
A person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone. In many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.
If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy — in the form of a material reduction in what would otherwise be an appropriate sentence — is very likely due.
But sentencing discounts, and especially significant sentencing discounts, should not be given unless remorse is established by proper evidence, or unless on a proper basis the judge is content to relieve the offender of the need to discharge that burden. In adopting the necessary ‘precision of approach ... in complying with the obligation to take the plea of guilty into account’, sentencing judges should approach with caution assertions that the plea itself is a sufficient basis for a conclusion that remorse is present, warranting a discount over and above that which is to be granted on the basis of utility. As Redlich JA and Curtain AJA point out in Phillips, ‘[t]he conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists’.
We respectfully agree with Redlich JA and Curtain AJA that ‘[i]n every case the genuineness of the contrition and the time and manner in which it is manifested in association with the plea of guilty will require evaluation by the sentencing judge in the light of the overall complexity of the facts before the court’.[10]
[9](2012) 226 A Crim R 354, 365-6 [38]–[41] (‘Barbaro’).
[10]Barbaro (2012) 226 A Crim R 354, 365-6, [38]–[41].
It is clear that the time at which a sentencing judge is to determine whether an offender has demonstrated genuine remorse in this sense is subsequent to the offending. As this Court observed in Broadbent:
[W]e do not think that Broadbent’s (admitted) lack of consideration for others at the time of the offending justified any ‘qualification’ of the Court’s acceptance of the remorse which he expressed subsequently. In our view, Broadbent’s expressions of ‘deep remorse’ — to which both the prosecutor and defence counsel had drawn attention — reflected his subsequent realisation of, and deep regret for, the very lack of consideration for others which had characterised the offending. The expressions of remorse were couched in unusually emphatic terms. There being no suggestion by the prosecutor in the course of the plea that Broadbent’s remorse was other than genuine and heartfelt — as it appeared to be — he was entitled to have it given full weight in the sentencing process.[11]
[11]Broadbent [2009] VSCA 320 [19].
Discussion
It is beyond doubt that at the time of his offending the appellant well understood the impact of his continuing actions upon his victims. But this was neither an aggravating factor of his offending[12] nor relevant to the task of the judge in assessing whether he had demonstrated genuine remorse.
[12]Broadbent [2009] VSCA 320 [18].
While the fact of the appellant’s ‘ice’ use was not mitigatory of his conduct, it is relevant to describing that conduct as a spree. Over a short period of time, the appellant’s ongoing focus was the repeated need to obtain money for illicit drugs or to pay drug debts.
When that spree ended with his arrest and remand, the appellant moved his focus to the broader consequences of his actions. It is from the conduct of the appellant at that time and subsequently that the assessment of his claimed remorse should have been made.
The judge was not bound to accept the evidence of remorse as relied upon by the appellant, and did not. However, this rejection of evidence of remorse was not made because her Honour was not satisfied by that evidence. Rather, as accepted by the respondent, the judge decided not to accept the evidence of remorse because it was inconsistent with a lack of remorse at the time of offending. In this regard, her Honour erred.
In our view, the evidence available to her Honour as to the expressions and actions of the appellant subsequent to the offending should have anchored a finding that the appellant had demonstrated a measure of remorse. This is apparent from his words and demeanour in the recorded interview, which, as we have said, we have watched. It is also demonstrated by the appellant’s expression of regret to Dr Scally and his then counsel. The evidence did not support a finding of ‘deep regret’,[13] but in the circumstances of the case, a measure of remorse was established.
[13]See [64] above.
It follows that ground 1 is made out.
Re-opening of sentencing discretion
As we have upheld ground 1, the appeal will be allowed and the appellant will be resentenced. Accordingly, it is not necessary for us to determine ground 3 with respect to manifest excess. Nor is it strictly necessary to consider ground 2. However, given the argument presented with respect to victim impact, a matter that is always relevant to the exercise of the sentencing discretion, we will consider it briefly.
Ground 2 — Victim impact
The appellant submitted that the judge made a finding that the victims suffered fear and harm absent any evidence to that effect. He argued that there is a difference between the presumption that armed robbery, by its nature, causes harm, and the assumption that the victims in this matter were impacted. Further, the appellant contended that her Honour’s suppositions as to why the victims did not make victim impact statements were speculative and irrelevant to the sentencing exercise.
The Sentencing Act1991 mandates consideration of the impact of the offending upon victims.[14] The presentation of victim impact statements is not a condition precedent to that consideration.
[14]Sentencing Act 1991, s 5(2)(daa).
In our opinion, the absence of victim impact statements did not preclude the judge from inferring that the victims were adversely affected by the appellant’s offending. As a matter of common sense, in the absence of evidence to the contrary,[15] a sentencing judge is entitled to infer that a lone store attendant who is confronted by an offender wielding a blood-filled syringe or a knife in an empty store during the night would fear for his or her safety (if not for his or her life). In any event, in the present case, the appellant stated in his record of interview that he saw the fear in the victims’ faces.
[15]For example, the victim of the offending the subject of charge 6 said he was not afraid.
However, the judge should not have speculated about why the victims did not prepare victim impact statements. As this was not an issue on the plea, it is difficult to understand why the judge discussed it at some length. On the other hand, the fact that the judge made it clear that her speculative discussion did not have any bearing on her exercise of the sentencing discretion means that there is no basis for upholding ground 2.
Resentence
Having regard to our observations with respect to ground 1, with due weight being given to the demonstrated remorse of the appellant, we will resentence him to a total effective sentence of seven years and three months’ imprisonment and fix a non-parole period of five years in accordance with the following table.
Charge Offence Sentence Cumulation 1 Armed robbery 40 months 6 months 2 Armed robbery 40 months 6 months 3 Armed robbery 40 months 6 months 4 Armed robbery 37 months 2 months 5 Armed robbery 40 months 5 months 6 Attempted armed robbery 38 months 2 months 7 Armed robbery 40 months 5 months 8 Armed robbery 42 months Base 9 Armed robbery 40 months 5 months 10 Armed robbery 38 months 2 months 11 Robbery 22 months 2 months 12 Armed robbery 38 months 2 months 13 Armed robbery 38 months 2 months Total effective sentence 7 years, 3 months’ imprisonment Non-parole period 5 years
Pursuant to s 6AAA of the Sentencing Act we will make a declaration that, but for the appellant’s plea of guilty, we would have sentenced him to a total effective sentence of 10 years and six months’ imprisonment and fixed a non-parole period of eight years.
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