R v Awad
[2007] VSCA 299
•29 November 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 391 of 2006
| THE QUEEN |
| v |
| ALBERT AWAD |
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JUDGES: | BUCHANAN JA and COLDREY and CURTAIN AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 November 2007 | |
DATE OF JUDGMENT: | 29 November 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 299 | |
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CRIMINAL LAW – Sentence – Guilty plea to armed robbery (1 Count) and robbery (3 Counts) – Offending occurred over two month period upon taxi drivers – Relevant prior convictions – Individual sentences and total effective sentence of 6 years’ imprisonment with a non-parole period of three years not manifestly excessive – No error in sentencing Judge’s treatment of appellant’s youth.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr S A Moglia | Lewenberg & Lewenberg |
BUCHANAN JA:
I will ask Curtain AJA to deliver the first judgment.
CURTAIN AJA:
The appellant pleaded guilty in the County Court to one count of armed robbery and three counts of robbery. The offences occurred in a two-month period between December 2005 and February 2006. Each of the victims were taxi drivers and each of the offences secured modest amounts of money.
The appellant admitted 34 prior convictions from eight court appearances between 1999 and November 2005. These included convictions for theft (nine), attempted theft (two), burglary (four), attempted burglary (two) and, most relevantly, armed robbery. While on remand for these present offences the appellant was dealt with on a consolidation which included three counts of attempted armed robbery committed in July 2005 and offences committed in January and February of 2006 - that is, around the time these present offences were committed.
The offences
The circumstances of the present offences are briefly stated as follows. In respect of count 1, armed robbery, the appellant got into a taxi being driven by the victim at 11 pm on 26 December 2005. He invited the victim to an inner city location on the pretext of viewing items for sale. The two men arrived at the address and caught a lift to the 18th floor. Once there, the victim changed his mind and said he did not want to buy anything and he was going to leave. The appellant grabbed him by the throat, threatened to kill him and demanded money. The victim retaliated by grabbing the appellant and saying he wouldn't give him any money. The appellant then let go, and the victim stood, waiting for the lift. At this point, the appellant produced a syringe in his right hand. The syringe did not have a cap on it and most of it was not visible to the victim, it being covered by the appellant's hand. The appellant again demanded money, and this time the victim gave him $145 cash which he had in his top pocket. The appellant took the money and walked away.
The second count, that of robbery, occurred on 22 January 2006 at 1 pm. The victim in this matter picked up the appellant and two other males as a consequence of an earlier arrangement to look at a laptop computer with a view to buying it. The victim was told that the appellant was also going to view a computer. En route, the victim stopped at his house to collect $700 in cash to pass on to the owner of the taxi at the end of his shift. The victim was then instructed to drive to a block of flats in Carlton. The three men, accompanied by the victim, went to the 7th floor of the flats, but the victim decided to leave. He returned to the taxi, and the appellant, who by then had also returned to the taxi, sat in the back seat. The appellant then reached over from behind and grabbed the victim around the throat and demanded whatever money he had. The victim told him he could have what he wanted, but while still in the appellant's grip, the victim was punched two or three times by one of the other males, who by now were also seated in the back seat of the taxi. The $700 in cash was eventually located in the taxi, and the victim broke free from the appellant's hold upon him, and as he left the taxi, he was punched by one of the other males.
Count 3, a count of robbery, occurred on 18 February at 7.40 pm. On that occasion, the appellant hailed a taxi driven by the victim. The appellant told him he had no money with him for the fare, but did at home. He directed the victim to drive him to an address in Carlton, and the victim accompanied him to a flat, and there, in the course of a brief struggle, the appellant reached into the victim's top pocket and took $300 in cash. The appellant then broke free and ran away and the victim gave chase, but lost him.
Count 4, also a count of robbery, occurred in the early hours of the following day. The appellant directed the victim to an address in Carlton, and the appellant said that he had to go to his flat to get money. The victim accompanied him. At the door of the flat, the appellant asked the victim if he had change of $100, and, as he removed the money from his pocket to provide the change, the appellant made a demand to the effect, 'You can make this hard or easy, give me your money.' The appellant then tried to snatch the money from the victim, in the course of which the victim dropped two $5 notes. As he bent over to pick them up, the appellant again tried to take the money from his hands. He then punched the victim, as a result of which the victim gave him the $400 he had with him, and the appellant ran away.
Sentence
The appellant was sentenced as follows: count 1, armed robbery - four years' imprisonment; count 2, robbery - two years and six months' imprisonment; count 3, robbery - two years and six months' imprisonment; count 4, robbery - two years and six months' imprisonment. As the appellant committed the offences the subject of counts 3 and 4 while on bail, the provisions of s 16(3C) of the Sentencing Act applied. The sentencing judge ordered that eight months of the sentences imposed in respect of counts 2, 3 and 4 be served cumulatively with each other and on the sentence imposed on count 1, creating a total effective sentence of six years' imprisonment, and fixed a non-parole period of three years.
The appellant appeals the sentences imposed on the grounds that they are individually manifestly excessive and that the total effective sentence and non-parole period is manifestly excessive. The appellant also contends that the sentencing judge erred in his treatment of the appellant's youth as a sentencing factor.
The appellant's personal circumstances
The appellant's parents separated when he was six years old. His mother remarried and his stepfather was physically, verbally and emotionally abusive towards him, to the point where the Department of Human Services intervened and the appellant went to live with his father at the age of 11. This arrangement was successful until he was 14, when his father remarried and the appellant did not get on with his stepmother. So it was that he was rejected by both his step-parents. The appellant moved out of home at the age of 16 and lived with extended family and friends. Not surprisingly, because his living arrangements were transient, he moved school three times, and eventually left school in year 10. Since the age of 18 he has lived independently in a Department of Housing flat in North Melbourne. He has been in a relationship with his fiancée since they were both 14 and he has lived with her since they were 18, apart from a time when she returned to live with her sick mother to care for her. In October 2006, his fiancée gave birth to their son.
Since leaving school, apart from when he was detained in a youth training centre, the appellant has engaged in pre-apprenticeship training and apprenticeships in panel-beating and retail services. He also worked as a bricklayer and worked in his uncle's catering supply business. His employment, however, has generally been thwarted by his drug use. He was introduced to amphetamines at the age of 15 and heroin at the age of 19. He uses amphetamine intermittently, but heroin is his drug of choice, and the longest period that he has been drug free prior to this offending was a period of six to nine months after his release from youth training centre.
The appellant's youth
The appellant was 22½ at the time of the offences and 23 when he fell to be sentenced. The appellant's youth was a relevant sentencing consideration. It pertains to the weight to be given to his prospects for rehabilitation and the weight to be given to general deterrence. In the case of a youthful first offender, rehabilitation is usually far more important than general deterrence, and such an offender is not to be sent to an adult prison if that can be avoided.
In this case, not only was the appellant not a first offender, as was the case in Mills'[1] case, but he had relevant prior convictions, including a prior conviction for armed robbery. This offence was committed in company and involved the production of a knife and the theft of items from an overseas student whom the appellant had followed as he alighted from a tram. The appellant was sentenced to 21 months in a youth training centre for this offence. I note also that on 23 November 2005 the appellant was sentenced to 30 days' imprisonment and ordered to undergo a 12-month community-based order for a number of offences which included offences of dishonesty. Therefore, the appellant was on a community-based order when he committed these offences and could not have been long out of adult prison when he committed the first of these offences, the armed robbery.
[1] [1998] VR 235.
The prospects of the appellant's rehabilitation were thoroughly canvassed on the plea and his Honour acknowledged that the appellant had the continued support of his long-standing fiancée, now the mother of his young child, and for a time after his release from youth training centre, the appellant had remained drug free. His Honour expressed the preliminary view that he regarded the appellant's prospects for rehabilitation as 'cloudy'. In his Honour's sentencing remarks, his Honour, however, expressly stated:
You are still a youthful offender and the court should be slow to conclude that you are beyond rehabilitation.
His Honour came to the considered view that the appellant had limited prospects for rehabilitation and that his only prospect for rehabilitation was if he remained drug free and continued in the relationship with his fiancée.
Clearly, his Honour was entitled to come to that view. The appellant has had the benefit of numerous dispositions, including an adjourned bond, three community-based orders, a fine, periods of detention in a youth training centre and a term of imprisonment. Each of these previous dispositions had failed to deter the appellant from re-offending. In these circumstances, where his Honour acceded to counsel's request to impose a longer than normal non-parole period, it cannot be said that his Honour concluded that the appellant was beyond rehabilitation, and it must be said that his Honour took due regard to the appellant's youthful status as it impacted upon considerations of rehabilitation and general deterrence.
The grounds of manifest excess
The maximum penalties for armed robbery and robbery are 25 years and 15 years respectively. The offending conduct in each instance was a serious example of these offences. Each of the victims were taxi drivers, working alone, and in vulnerable circumstances. In each of the instances, the appellant employed a ruse to get the victim away from his taxi and such safety that that taxi provided, and take him to an isolated location. The robbery in respect of count 2 was committed in company and the robbery in respect of count 4 was committed only hours after the robbery committed in respect of count 3. Further, the appellant committed the robbery the subject of count 2 after he had been interviewed by the police in respect of the armed robbery the subject of count 1, and, as stated previously, it appears that the appellant was on a community-based order at the time. The offences were premeditated and must have involved a degree of planning. Although not necessarily a sophisticated example of these offences, they were none the less successful. Although only one of the victims in his victim impact statement refers to the emotional trauma he suffered as a result of the appellant's offending conduct, it must be accepted that these were no doubt fearful experiences for each of the victims, irrespective of the duration.
His Honour had proper regard to the salient features of each of the offences. His Honour was obliged to give due weight to the nature and gravity of the offences and the need to pass a sentence which would act in denunciation of his conduct and seek to deter others from committing similar offences. His Honour took into account the need to pass a sentence which would specifically deter the appellant in circumstances where previous dispositions had failed to do so. His Honour took into account all of the relevant sentencing considerations which were favourable to the appellant, including his pleas of guilty, his youthful offender status, his history of childhood abuse and rejection, his drug use, his efforts to remain drug free, and his prospects for rehabilitation. His Honour, in compliance with s 16(3C) of the Sentencing Act, and addressing the principles of totality so as not to impose a crushing sentence, made orders for partial concurrency in respect of counts 3 and 4.
In these circumstances, it cannot be said that the sentences imposed, either individually or the total effective sentence, is manifestly excessive. The non-parole period made due allowance for the appellant's prospects for rehabilitation whilst under the supervision and structure provided by the Adult Parole Board. In these circumstances, the total effective sentence and the individual sentences imposed were within the range available to his Honour, having regard to the gravity of the offending and the matters favourable to the appellant.
For these reasons, I would dismiss the appeal.
BUCHANAN JA:
A sentence of four years' imprisonment imposed upon a 22-year-old could be viewed as stern. For the reasons stated by Curtain AJA, however, I do not consider that in the circumstances of this case the sentence involved any error that could vitiate the sentencing discretion. Accordingly, I agree that the appeal should be dismissed.
COLDREY AJA:
Whilst the sentence on count 1 and consequently the total effective sentence may be regarded as stern, neither is outside the range of appropriate sentences available. Accordingly, I agree that this appeal should be dismissed, for the reasons advanced by Curtain AJA.
BUCHANAN JA:
The order of the Court is that the appeal is dismissed.
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