Poutai v The Queen
[2011] VSCA 382
•18 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0357
| WALTER CHRISTOPHER POUTAI | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | BUCHANAN and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 November 2011 | |
DATE OF JUDGMENT: | 18 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 382 | |
JUDGMENT APPEALED FROM: | DPP v Poutai (Unreported, County Court of Victoria, Judge Mason, 13 September 2010) | |
---
CRIMINAL LAW – Sentence – Armed robbery, intentionally causing serious injury and false imprisonment – Pleas of guilty – Sentenced to a total effective sentence of five years and six months’ imprisonment – Non-parole period of three years and three months – Co-offender sentenced as a youthful offender – Parity – Differences in sentencing regimes for adult and juvenile offenders – Children, Youth and Families Act 2005, s 362(1) – Whether Crown required to tender on the plea statements in co-offender’s record of interview about the appellant’s role in the offending – Double punishment in relation to false imprisonment sentence – Whether base sentence and non parole period manifestly excessive – Appeal allowed in part – Re-sentence.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M D Stanton | Victoria Legal Aid |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will ask Harper JA to deliver the first judgment.
HARPER JA:
On 14 January 2010, at about 3.30 am, the appellant, an adult of 30 years of age, drove his car to a point approximately 50 metres north of the service station in Albert Street, Sebastopol. He and his co‑offender, a young man aged 17 named Jamie Brincat, walked from the car to the shop entrance. Given the hour, it is not surprising that the customer's door was locked. But the station's console operator, Mr Ranjiv Katta, was in attendance. When the appellant and Brincat approached, Mr Katta mistook them for customers. By pressing the security switch, he enabled them to open the doorway.
Part of what happened thereafter was captured on CCTV. Brincat entered, wearing a hooded top and carrying a concealed 18‑inch machete. He walked quickly towards the counter, jumped over it, grabbed Mr Katta and demanded money.
The appellant entered shortly after Brincat. He was similarly attired. Once behind the counter, he struck Mr Katta in the face with his clenched fist. Meanwhile, Brincat began to search the cash register for money, while both Brincat and the appellant made various shouted demands of their victim.
One of these demands was that Mr Katta open the safe. This was located in the manager's office, into which the appellant pushed the victim. Once inside, the two offenders closed the door. One of them broke the CCTV camera.
Their victim did as he had been told. The safe was opened. After some two minutes inside the office, the offenders and Mr Katta returned to the front counter, where the appellant removed coins from a change machine and began taking cartons of cigarettes, which he placed into plastic bags. At one stage he pointed a Stanley knife at Mr Katta. According to the victim, the appellant also at some point told Mr Katta that he had a gun and, if necessary, would use it.
Activities of this kind continued for the next 10 minutes or so. Then the police arrived. The appellant and Brincat were taken into custody at approximately 3.48 am.
On a search of the service station, the police found receptacles into which the offenders had placed $10,856 in cash, together with cigarettes, cigars, cigarette lighters, non‑prescription medications, condoms and lollies. Also stolen were fuel cards and safety jackets.
The victim was taken by ambulance to hospital. He had suffered multiple cuts to his face and mouth and experienced soreness to the head and the neck.
The appellant is 13 years older than Brincat. Their association derived from the fact that Brincat is the brother of the woman with whom the appellant was then living and by whom he has fathered two children.
Despite his youth, Brincat had, by January 2010, accumulated a daunting list of prior convictions. Details of these, which had not previously been made available to the Court, were provided during the course of the hearing of this appeal. The extent of his offending is indeed a cause for concern.
The record of the appellant is not perfect, either. On 2 November 2005, he was convicted on two counts of armed robbery and sentenced to 13 months’ imprisonment on each charge, to be served concurrently. On 21 November that year, he was convicted of robbery, and sentenced to seven months' imprisonment, wholly suspended for 18 months. Some three and a half years later, on 8 May 2009, he was convicted of attempted burglary and was sentenced to two months’ imprisonment, wholly suspended for 12 months. He was serving that suspended sentence when he robbed the Sebastopol service station on 14 January 2010.
The appellant took the earliest possible opportunity to plead guilty to three charges, one each of armed robbery, intentionally causing injury and false imprisonment. These pleas were rightly taken by the sentencing judge as a mitigating factor, while – with equal correctness – noting that the appellant ‘had little forensic alternative’.
Sentence was pronounced on 13 September 2010. On the armed robbery charge, the appellant was sentenced to four years and six months in prison. This became the base sentence. On the charge of intentionally causing injury, the sentence imposed was one year's imprisonment; and on the final charge (false imprisonment) the appellant was sentenced to a further year.
Armed robbery carries a maximum penalty of 25 years’ imprisonment. Each of the second and third charges carries a maximum penalty of 10 years’ incarceration. His Honour ordered that six months of each of these two sentences be served cumulatively upon the sentence imposed for the armed robbery. The result was a total effective sentence of five years and six months’ imprisonment. The sentencing judge ordered that the appellant serve three years and three months before becoming eligible for parole.
On 12 May this year, Buchanan JA granted the appellant leave to appeal. Four grounds are relied upon. The first is that the sentencing judge ‘erred in imposing a sentence on the appellant that was so much greater than that of his co‑offender that the appellant has a justifiable sense of grievance as to disparity.’
The second is that in determining the appellant’s moral culpability, his Honour erred in failing to have regard to a relevant consideration – that being Brincat's claim, made in his record of interview with the police, that the appellant was not involved in preplanning the service station raid.
The third is that an element of double punishment is contained within the sentences imposed on the charges of armed robbery and false imprisonment, or one or other of them.
Finally, ground 4 is that his Honour imposed sentences on the charge of armed robbery and false imprisonment, including the orders for cumulation and the setting of the non‑parole period, which are manifestly excessive.
In my opinion, grounds 1 and 2 have no substance. There is no warrant at all for the appellant to feel aggrieved by the fact that Brincat received nine months' detention in a youth justice centre, whereas he (the appellant) must serve a total effective sentence, according to the sentence imposed below, of five and a half years. Brincat, being 13 years younger than the appellant, and only 17 years old at the time of the offending, was sentenced pursuant to the sentencing regime set up by the Children, Youth and Families Act 2005. By contrast, the appellant was sentenced as an adult pursuant to the Sentencing Act 1991.
The two regimes are strikingly different, as this Court has remarked previously.[1] There is, accordingly, considerable difficulty in ensuring parity between co‑offenders when one is sentenced as an adult and the other as a child. Even if the ages of the two are similar, but one is sentenced as an adult while the other is not, difficult issues of parity may arise. But where, as here, the age difference is 13 years, the difficulties generally become almost insurmountable. In the words of Ormiston J in R v Evans: [2]
Consistency in sentencing is no doubt, in general terms, a desirable aim, however difficult it is to achieve in practice having regard to the multifarious factors which must now be taken into account. One of the virtues, however, of the Children’s Court system is that that court can make special allowance for factors which would otherwise be irrelevant under the Sentencing Act. Consistency must work both ways and it would be entirely inappropriate that members of the Children’s Court should temper their sentences to reflect what had been done or might yet be done in sentencing offenders pursuant to the Sentencing Act. Apart from the effective limit of three years’ detention in a youth training centre, there is also the practical consideration that for the most part the evidence given in that court and more importantly the sentencing remarks are not published generally and certainly are not made available in the ordinary course of events to either trial judges or members of the Court of Appeal. One may wonder, therefore, to what extent any person might reasonably be perceived to have a legitimate ground of grievance if they are unable to know what the factual basis was for sentencing in the Children’s Court, what were the factors peculiar to the individual and what were the grounds upon which that court acted, assuming that they have been expressed in full.
[1]R v Neket (Unreported, Supreme Court of Victoria Court of Appeal, Winneke P, Brooking JA and Ashley AJA, 28 May 1997), 6; CNK v The Queen [2011] VSCA 228, [80].
[2][2003] VSCA 223 [5].
The relevant provision of the Children, Youth and Families Act is s 362(1), which provides as follows:
(1)In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—
(a)the need to strengthen and preserve the relationship between the child and the child's family; and
(b) the desirability of allowing the child to live at home; and
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d)the need to minimise the stigma to the child resulting from a court determination; and
(e) the suitability of the sentence to the child; and
(f)if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and
(g)if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
The opening words of the subsection are instructive. Not only is the language imperative (‘the Court must’) but the words ‘as far as practicable’ operate, in context, as words of emphasis. Since the word ‘practicable’ means ‘feasible’ or ‘able to be done or accomplished’, the phrase ‘as far as practicable’ means as far as it is possible to go.[3] Hence the sentencing court must have regard to each of the specified matters in that subsection to the maximum extent possible. And the statutory obligation to ‘have regard to’ a specific matter requires the Court to give the matter weight 'as a fundamental element in the decision‑making process'.[4] Moreover, as explained below, the specified matters are not matters of fact but statements of policy. They identify the policy objectives which must – to the maximum extent possible – govern the sentencing of young offenders.
[3]Owen v Crown House Engineering Limited [1973] 3 All ER 618, 622–3.
[4]Commissioner of Police v Industrial Relations Commission of New South Wales (2009) 185 IR 458, 469 [73] and the authorities there cited.
The matters to which regard must be had pursuant to this legislation are – without exception – directed at a consideration of the effect of the proposed sentence on the child. This is true even of s 362(1)(g) which, although expressly referring to the need to protect the community, directs attention to what will deter, or prevent, the particular child from engaging in ‘violent or other wrongful acts’. The Sentencing Act, by contrast, is not directed at a consideration of the effect of the proposed sentence on the adult offender. It requires the sentencing court to have regard to the maximum penalty, current sentencing practices, the nature and gravity of the offence, the offender's culpability and degree of responsibility and the other matters specified in s 5(2). Issues of general deterrence, too, loom large in most sentencing decisions where the offender is an adult.
That is not so in the regime under which juvenile offenders are sentenced. What s 362(1) of the Children, Youth and Families Act obliges the sentencing court to do ‘as far as practicable’ is to impose a sentence which fits the young offender as much as – or perhaps even more than – it fits the crime. Thus the Court must, as far as practicable, impose a sentence which is suitable to the child (paragraph (e) of the subsection) and must, as far as practicable, impose a sentence which will achieve the following policy objectives:
· strengthen and preserve the child’s relationship with his or her family;
· allow him or her to live at home;
· allow him or her to continue with education, training or employment; and
· result in the minimum stigma to the child.
General deterrence as a sentencing consideration is entirely foreign to a scheme of character. And, as I have endeavoured to demonstrate, dispositions which would be regarded as entirely inappropriate in the case of older individuals may be clearly justified in the case of a youth. In cases such as that of the present appellant, any attempt at comparison between sentences under the two regimes would be entirely inappropriate. Ground 1 must therefore fail.
Under ground 2, the appellant argues that the sentencing judge ought to have allowed into evidence on the appellant's plea a statement made by Brincat in his interview with the police to the effect that the appellant was not involved in the planning for the invasion of the service station. It was, the appellant submitted, the Crown's case on the plea that the appellant was involved in this planning and that was an aggravating factor of his offending. This being the Crown's position, the burden was on the Crown to prove to the judge's satisfaction beyond reasonable doubt that the appellant was involved in planning the raid.
Under these circumstances, the appellant's argument continues, the prosecutor should have known that information relevant to that sentencing consideration was contained in Brincat's record of interview; and, given that the passages from that record which were cited by counsel for the appellant on the plea were ‘directly relevant’ to the issue whether Brincat ‘was the instigator of the offending and whether the appellant was, albeit initially, a reluctant participant in the armed robbery’, the prosecutor should have tendered, and the judge ought to have admitted, the relevant passages.
In my opinion, this submission ignores the decision of the High Court in Bannon v The Queen,[5] and is to misunderstand the operation of the rules governing the burden of proof on a plea hearing. When a man of 30 accompanies a youth of 17 in an armed raid upon commercial premises, the court is entitled to assume that the adult knew beforehand what was about to happen and was a willing participant in giving effect to the plan. Precise analysis of the degree to which each co‑offender participated in the planning process is not, at least not generally, a sentencing consideration.
[5](1995) 185 CLR 1.
If the appellant wished to establish that the prima facie presumption of his pre‑raid involvement should not be adopted, then it was for the appellant to introduce evidence to that effect. He could have called Brincat; or it was open for him to give evidence himself. He did neither of these things. A statement made by Brincat in Brincat's record of interview was not the best evidence, as the case of Bannon shows, and no application was made to have it admitted pursuant to any of the provisions of any relevant legislation. Even if such an application had been made, it is by no means certain that it would have succeeded. It must also be remembered that Brincat was not much at risk in asserting his own responsibility for the planning of the venture, given that he was to be dealt with in the juvenile justice system. A paper record of what he told the police would not therefore have had much credibility or much weight. Ground 2 must, for these reasons, fail.
The charge of false imprisonment was founded upon the fact that, for two minutes, the offenders detained Mr Katta in a manager's office. This was very much a part of the overall events which together comprise the armed robbery. While, in my opinion, it was legitimate for the sentencing judge to include this discrete aspect of the offending as one which warranted a separate sentence, nevertheless the false imprisonment was not in the circumstances of this case as grave an offence as that of intentionally causing injury. The punishment inflicted for the false imprisonment ought not, therefore, to have been treated for sentencing purposes as the equivalent of that which was imposed in relation to the charge of intentionally causing injury; and, while some cumulation was appropriate in relation to the latter charge, his Honour should not, as the Crown concedes, have directed cumulation in respect of the former: any sentence imposed for the false imprisonment should have been ordered to be served concurrently with the base sentence.
Taking these considerations into account, an appropriate sentence on the charge of false imprisonment would, in my opinion, be six months' imprisonment, to be served concurrently with the base sentence.
The claim that the base sentence and non‑parole period were manifestly excessive must now be seen against the circumstance that the sentencing discretion has been reopened. But, in my opinion, the sentence imposed in relation to the
charge of armed robbery was entirely appropriate. This was a serious example of an invasion of a soft target, taking place when the appellant was serving a suspended sentence. The treatment rendered to the victim was frightening in the extreme. As the appellant himself told the police, ‘no one deserved the treatment that the victim had received’. A sentence of four years and six months’ imprisonment for an armed robbery of this gravity is, in my opinion, entirely within range.
For the reasons set out above, however, I would allow the appeal and re‑sentence the appellant. I would, on the charge of false imprisonment, impose a sentence of six months' imprisonment, which should be served concurrently with the base sentence for armed robbery of four years and six months. To that should be added, in my opinion, six months of the sentence, appropriately set by the sentencing judge, of one year's imprisonment on the charge of intentionally causing injury.
The total effective sentence will therefore be five years’ imprisonment. I will reduce the non‑parole period by six months to reflect the reduction in the total effective sentence. I would accordingly fix a non‑parole period of two years and nine months. Had the appellant not pleaded guilty, I would have imposed a total effective sentence of six years' imprisonment, with a non‑parole period of four years and three months.
BUCHANAN JA:
I agree.
The orders of the Court will be as follows:
1. The appeal is allowed.
2. The sentence passed below is set aside and in lieu thereof, the appellant is sentenced to be imprisoned for a term of four years and six months
on count 1, for a term of one year on count 2, and for a term of six months on count 3.
3. Six months of the sentence on count 2 are to be served cumulatively on the sentence on count 1, creating a total effective sentence of five years’ imprisonment.
4. The appellant is to serve a term of two years’ and nine months’ imprisonment before he is to be eligible for parole.
5. The disposal order made in the court below is confirmed.
It is declared that a period of 673 days, not including today, is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.
‑‑‑
4
2
0