Pitone v The Queen
[2017] VSCA 3
•25 January 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0099
| LIAH PITONE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 January 2017 |
| DATE OF JUDGMENT: | 25 January 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 3 |
| JUDGMENT APPEALED FROM: | [2016] VCC 549 (Judge Cannon) |
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CRIMINAL LAW — Sentence — Appeal — Attempted armed robbery and recklessly causing injury — Sentenced to be imprisoned for 4 years with non-parole period of 2 years and 6 months — Youth — Cognitive deficits — Appeal allowed — Re-sentenced to be imprisoned for 3 years with non-parole period of 18 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms R Sleeth with Mr M Reardon | Victoria Legal Aid |
| For the Crown | Mr D Trapnell QC | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
In the County Court, on 15 March 2016, the appellant pleaded guilty to one charge of attempted armed robbery[1] (charge 1) and to one charge of recklessly causing injury[2] (charge 2). The judge sentenced him on 29 April 2016, to be imprisoned for three years and six months on the first charge and for 12 months on the second charge. Six months of the sentence on the second charge was ordered to be served cumulatively with that on the first, leading to a total effective sentence of four years’ imprisonment. The judge fixed a non-parole period of two years and six months’ imprisonment.
[1]Crimes Act 1958 s 75A and s 321M. The maximum sentence is 20 years’ imprisonment.
[2]Crimes Act 1958 s 18. The maximum sentence is 5 years’ imprisonment.
On 1 September 2016, I granted leave to the appellant ‘on the papers’ to appeal against the sentence[3] on a single ground:
[3]Pitone v The Queen (Unreported, 1 September 2016, VSCA, Priest JA) (‘Leave reasons’).
The sentence on charge 1 (attempted armed robbery) is manifestly excessive when taking into account:
(a) Matters particular to the Applicant, including:
(i) The Applicant’s youth;
(ii) The Applicant’s cognitive impairment;
(iii)The Applicant’s admissions and plea of guilty at the earliest stage;
(iv)The Applicant’s expressions of remorse;
(v) The Applicant’s prospects of rehabilitation; and
(b) Current sentencing practices.
Having now entertained full oral argument, I would allow the appeal.
The appellant’s offending
As I observed when granting leave, the appellant’s offending objectively was very serious.
On the plea hearing, the prosecutor described the offending as follows:[4]
[4]Minor adjustments have been made to syntax and punctuation.
The [appellant] was born on 30 June 1997. At the time of the offending he was 18 years old ... The victim in this matter is Mary Aceska.
On 14 September 2015, at approximately 1.45 pm, [the appellant] entered a ‘Cellarbrations’ liquor store in St Albans. He was wearing a cap with a dark navy hoodie pulled up over his head and black rimmed see through glasses. He was carrying a backpack in front of him. Ms Aceska was working at the liquor store.
[The appellant] walked towards a shelf and stood there for a while with his back to Ms Aceska. Ms Aceska approached [the appellant] and asked, ‘Can I help you’. [The appellant] replied, ‘Just looking’. Ms Aceska asked him a couple more questions but [the appellant] was unresponsive. [The appellant] started walking towards the exit when he suddenly stopped. Ms Aceska asked him to take off his hoodie and hat. Once again, [the appellant] was unresponsive. Ms Aceska told him to leave by tapping him on his arm. [The appellant] was now near the front counter. He was fiddling with his backpack.
He turned to face Ms Aceska. He had a meat cleaver in his left hand and a baseball in his right hand. Ms Aceska ran towards the office. Using the baseball bat, [the appellant] hit her heel. Ms Aceska tripped and fell to the ground. She got up, took hold of the bat, trying to take it off [the appellant]. [The appellant] swung at her with the meat cleaver. [The appellant] continued to swing the meat cleaver at Ms Aceska. [The appellant] said, ‘Give me the money, give me the money’. Ms Aceska told him to ‘fuck off’. She eventually took at bat off him and started hitting him with it, connecting twice with [the appellant’s] arm. [The appellant] ran towards the door and out of the store. Ms Aceska tried to close both the glass doors and the security doors but was unsuccessful. [The appellant had] left his backpack in the store.
[The appellant] returned to the store and started swinging the meat cleaver again. It connected with [Ms Aceska’s] right index finger as she was trying to shut the security door. Ms Aceska picked up the baseball and started swinging at [the appellant] again. [The appellant] ran from the store. Ms Aceska called ‘000’.
Police attended shortly thereafter and seized [the appellant’s] backpack. In the backpack police located an appointment card for Youth Justice. The baseball was also seized by police.
As a result of the offending, Ms Aceska incurred an injury to her right index finger, being a raised flap over the radial aspect including the nail fold and a swollen fingertip.[[5]]
On 16 September 2015, police executed a warrant at [the appellant’s] family home. [The appellant] was located in a cupboard in his brother’s bedroom. Police arrested and cautioned [the appellant]. [The appellant] made admissions to committing the attempted armed robbery and said: ’Yeah, I know why you’re here, I did it, I didn’t mean to hurt her. I had a plan A and a plan B. Plan A was to grab the grog. Plan B was to get the money. I went to plan B and geared up. Just wanted the money. My parents don’t give me any money. I wanted to pay off my fines. It was stupid, I didn’t mean to hurt her’.
He told police that he had disposed of the clothing that he had worn during the armed robbery except for his pants. He showed police where the pants were. He further indicated that he had left the meat cleaver at a house in St Albans where some of his family lived. The meat cleaver was seized by police from the St Albans address that [the appellant] provided to police. An occupant of the house had found it under a couch.
[The appellant] was taken to the Sunshine police station where he participated in an interview with police. He made full admissions consistent with what he told police when he was arrested. He also said: ‘She was so frightened because I had, like, weapons, and she couldn’t do anything about it so she was scared. That night I went to my cousin’s house and blazed up and that is where we used, like, we usually kickback there. That’s the house where you got the knife from. I’d like to say I’m sorry and won’t be able to do it again because I’m so committed to the spray painting or the panel beating’.
[5]The injury is depicted in a photograph, Exhibit C.
The appellant’s crimes have had a profound effect upon the victim. In her victim impact statement (Exhibit B), among other things Ms Aceska states that she is no longer the ‘bubbly individual’ she used to be, and that it is a ‘struggle to venture outside’ her home. She no longer goes out with her friends, has become ‘very wary’ of strangers and avoids ‘interacting with any unknown individuals’.
The appellant’s personal circumstances and psychological condition
The appellant was born in Samoa on 30 June 1997, and is now aged 19 years. As previously observed, he was aged 18 when he committed the present offences. When he was aged 7 or 8, his family moved to New Zealand. His family migrated to Australia when he was aged 14.
Albeit that they were imposed in the Children’s Court, the appellant has a disturbing array of prior convictions and findings of guilt. By my reckoning, he has three prior convictions for armed robbery and one for attempted armed robbery; one prior conviction for intentionally causing injury; one conviction for reckless conduct endangering serious injury; one conviction for making a threat to kill; and one conviction for affray. He also has multiple convictions or findings of guilt for intentionally damaging property; theft; theft and attempted theft of motor vehicles; ‘shop stealing’; going equipped to steal; and an assortment of bail, driving and other summary offences.
So far as the appellant’s psychological condition is concerned, Dr Nina Zimmerman, a consultant psychiatrist, in a report dated 23 February 2016 (Exhibit 4), noted that the appellant’s childhood ‘appears to have been characterised by witnessing domestic violence’, and that there ‘was also a significant degree of instability as the family moved from Samoa to a number of destinations in New Zealand, and finally Australia’. Further, it appears that the appellant struggled ‘to engage with school from a young age’. Dr Zimmerman was of the view that the appellant ‘suffers from a cognitive disorder but requires expert neuropsychological testing to ascertain the underlying cause’, and that ‘he also suffers from well-established substance misuse disorders’. His ‘immature presentation and longstanding need to prove himself as being as ‘bad’ as those around him … will make him very vulnerable in the prison community’. Moreover, Dr Zimmerman thought that a term of incarceration will increase the appellant’s risk of reoffending. Further, she expressed the view that the appellant’s ‘limited cognitive facility also places him at risk of victimisation in the prison environment’.
Doctor Linda Borg, a neuropsychologist, in a report dated 9 March 2016 (Exhibit 5), expressed the following opinions:[6]
[T]he most prevailing aspect of [the appellant’s] presentation and cognitive profile is a significant compromise in verbal abilities both at a neurological and functional level. Specifically, he presents with (1) receptive and expressive dysphasia; (2) impaired acquisition of verbal information (i.e. word meanings, general knowledge, social norms); (3) unilateral memory impairment to verbal domain, affecting the ability to learn and retain information that is said/heard; (4) poor educational attainment and limited vocational success; and (5) fatuous mannerisms. Additionally, [the appellant] presented with deficits in high-order attention and processing speed as well as bilateral executive dysfunction, characterised by rigid and perseverative thinking, impaired higher order planning, poor self-monitoring and impulse control. In light of these findings and history, it is considered that [the appellant] presents predominantly with a developmental learning disability and developmental dysphasia. However, it is considered likely that mood state and the potential for emerging psychiatric disturbance may be contributing and exacerbating these underlying deficits, namely in relation to attention and executive functioning.
[6]Emphasis added.
Doctor Borg also thought that the appellant would be ‘highly vulnerable with continued imprisonment’. The ‘propensity for bullying and exposure to negative influences is high, which would likely have a detrimental impact upon [the appellant’s] psychological well-being.’
Notwithstanding the concerns expressed about the appellant’s vulnerability, however, Tim Paterson, a mentor in the Penhyn Youth Unit at Port Phillip Prison — who had been involved with the appellant for the five month period he had been remanded in custody up to the time of the plea hearing — in a letter dated 9 March 2016 (Exhibit 3), described the positive progress that the appellant had made. Mr Paterson said that Penhyn Youth Unit ‘recognises the vulnerability of young offenders’. The appellant had remained drug free in custody, and had completed courses in occupational health and safety, food handling and further education including mathematics, English ‘and other important communication and life skills’. Furthermore, the appellant has worked as a full-time billet within the unit, performing duties such as cleaning and rubbish removal.
In light of Mr Paterson’s letter, the judge called for further reports from Dr Zimmerman and Dr Borg. In a further report dated 24 March 2016, Dr Zimmerman acknowledged that his ‘stay on the youth unit in the prison would appear to have been beneficial’ for the appellant, but nonetheless Dr Zimmerman was of the opinion ‘that physical and psychological risks associated with incarceration in an adult prison remain greater … even when housed in a youth unit, because of the overall culture of the facility and the co-location of adult prisoners in the prison’. Detention in a youth justice centre was ‘likely to enable focus on rehabilitation without the risks posed to a man of [the appellant’s] age and intellectual capacity’. Dr Borg, in an addendum report dated 24 March 2016, also maintained her earlier opinions. She said that ‘the statements indicating that [the appellant] is performing well within the prison environment come as no surprise’ since ‘a highly structured and supervised environment like prison would in many respects suit [the appellant’s] cognitive needs’. But her concerns remain. The appellant, Dr Borg said, ‘is highly suggestible, vulnerable and will be more easily misled, hence reducing his exposure to potential negative influence is imperative to reducing recidivism risk’.
To complete the picture, I note that a pre-sentence report relating to the appellant’s suitability for a youth justice centre order, dated 29 April 2016, was obtained by the judge. The author of the report, Vicki Wilkinson, had previous dealings with the appellant. She expressed the view that, although the appellant was found suitable for a youth justice centre order, the appellant ‘had demonstrated his ability to manage within an adult prison’. Ms Wilkinson thought that a ‘highly structured environment appears to have assisted [the appellant’s] cognitive difficulties’. She was of the view that the appellant’s ‘prospects for rehabilitation in adult custody are more than reasonable’. Importantly, Ms Wilkinson expressed concern that a youth justice centre order may lead the appellant ‘to associate with previous co-offenders that exhibit significant anti-social influence that would likely affect his rehabilitation prospects’. She said that ‘the less structured environment of a Youth Justice Centre may be counterproductive and detrimental to [the appellant’s] long term prospects’. Ultimately, she expressed the view that an ‘adult custody sentence may be in [the appellant’s] best interest and conducive to his circumstances’, affording him ‘familiarity, continuity of care and [providing] rehabilitative interventions’.
Submissions
Whilst the appellant’s counsel acknowledged that the sentencing judge gave ‘serious and appropriate consideration’ to pertinent matters, it was nonetheless submitted that ‘the sentence imposed on the attempted armed robbery offence was outside the range open to the sentencing judge’. In summary counsel relied upon the following aspects:
· the appellant’s youth;
· his cognitive impairment;
· his admissions to police and early plea of guilty;
· his remorse; and
· his prospects of rehabilitation.
Comparable cases,[7] it was submitted, demonstrate that the sentence imposed upon the appellant is excessive.
[7]See DPP v Ghazi (2015) 45 VR 852; Boulton v The Queen (2014) 46 VR 308; Balcke v The Queen [2103] VSCA 198; R v Micetic [2006] VSCA 176.
Counsel for the respondent pointed to the serious aspects of the offending, including premeditation, the use of a disguise and the carrying of weapons (one of which — the meat cleaver — was used to injure the victim). It was also pointed out that the offending ‘had an enormous impact upon the victim’. Further, the respondent’s counsel submitted that the judge gave appropriate weight to the applicant’s youth, learning disability, early plea of guilty, remorse and prospects of rehabilitation. The appellant’s criminal history is, however, ‘disturbing’, he having previously been detained in a youth justice centre and supervised on parole and probation. Specific deterrence, so it was submitted, was a relevant sentencing consideration despite the appellant’s age; and, as the judge observed, prospects of rehabilitation were ‘fair’. The concerns about the appellant’s vulnerability in prison had not been realised. Weight needed to be given to protection of the community, general and specific deterrence and just punishment. Comparable cases, it was submitted, have a limited role.
Analysis
When granting leave to appeal, I described the appellant’s offending, objectively viewed, as very serious. The victim suffered not only physical injury, but also significant adverse psychological effects.[8] As I then observed, the appellant’s prior criminal history is not a source of much optimism. Indeed, I agree with the judge’s assessment that the appellant’s prospects of rehabilitation are ‘fair at best’.[9]
[8]Leave reasons [15].
[9]Ibid [16].
Notwithstanding the evident care exercised by the sentencing judge, however, I have come to the view that the sentence imposed is beyond that available in the sound exercise of discretion. Although such a conclusion does not depend upon the attribution of specific error, I think it likely that the appellant’s youth and cognitive impairment must not have been given sufficient weight.
At the risk of again traversing well-trodden ground, it is generally accepted that an offender’s youthfulness is a proper reason for extending leniency. A youthful offender may be immature, therefore more prone to ill-considered or rash decisions, and may lack the insight, judgment and self-control of an adult.[10] Chronological age, of course, is not determinative, since age of itself does not conclusively establish immaturity.[11] In the appellant’s case, however, not only was he only 18 years of age when he committed the relevant offences, but the available expert opinion demonstrates that he suffers from ‘impaired higher order planning, [and] poor self-monitoring and impulse control’.[12]
[10]Azzopardi v The Queen (2011) 35 VR 43, 53 [34] (‘Azzopardi’).
[11]See A Freiberg, Sentencing: State and Federal Law in Victoria (3rd Ed), [5.55].
[12]See [10] above.
Moreover, courts recognise the potential for youthful offenders to be rehabilitated — such rehabilitation being in the community interest[13] — and are cognisant of the fact that, generally speaking, incarceration in a prison is calculated to impair, rather than improve, a youthful offender’s prospects of rehabilitation.[14]
[13]Azzopardi 54 [35].
[14]Azzopardi 54 [36].
As I have said, the appellant’s prospects of rehabilitation must be seen as only fair. Furthermore, his offending was very serious, and the authorities recognise that, as the level of seriousness of offending increases, there will be a corresponding attenuation of the mitigation flowing from youth.[15] But as Redlich JA observed in Azzopardi:[16]
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth.[17] But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[18]
[15]See, for example, R v Bell (1999) 30 MVR 115; R v Tran (2002) 4 VR 457; R v Ung [2002] VSCA 101; DPP v SJK and GAS [2002] VSCA 131; R v Huynh [2004] VSCA 156; DPP v Lawrence (2004) 10 VR 125; R v Lam [2005] VSC 495 ; DPP v McCloy [2006] VSCA 99; R v Wyley [2009] VSCA 17.
[16]Azzopardi, 57 [44] (emphasis added).
[17]See also IE v R (2008) 183 A Crim R 150 at 155, [16] per Latham J, Spigelman CJ and Hulme J agreeing.
[18]Compare Director of Public Prosecutions v Terrick (2009) 24 VR 457, 470–1 [54] .
In my opinion, the appellant has made good the contention that the impugned sentence is manifestly excessive. Despite the seriousness of the appellant’s offending, and despite his prospects being fair, his youth and cognitive deficits should have been reflected in a more moderate sentence than that imposed. I should add that, in reaching that view, except in a very general sense, I have not been much assisted by so-called comparable cases.
Given my conclusions, the appeal must be allowed. I would convict the appellant and sentence him to be imprisoned as follows:
· Charge 1 — two years and nine months;
· Charge 2 — 9 months.
The sentence on charge 1 should be the base sentence. I would order that three months of the sentence on charge 2 be served cumulatively on the sentence on charge 1. The total effective sentence is thus three years’ imprisonment, upon which I would fix a non-parole period of 18 month’ imprisonment. Further, I would make an appropriate declaration as to pre-sentence detention and confirm all other orders of the County Court.
Pursuant to s 6AAA of the Sentencing Act 1991, I would declare that, but for the plea of guilty, I would have sentenced the appellant to a total effective sentence of five years’ imprisonment, upon which I would have fixed a non-parole period of three years.
SANTAMARIA JA:
I agree.
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