R v Awad
[2002] VSCA 145
•9 September 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 156 of 2002
| THE QUEEN |
| v. |
| TONY AWAD |
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JUDGES: | PHILLIPS, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 September 2002 | |
DATE OF JUDGMENT: | 9 September 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 145 | |
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Criminal law – Sentencing – Armed robbery and attempted armed robbery on “soft targets” – Co-offender with very different criminal record sentenced to same head term – Whether unjustified parity - Appellant’s head term reduced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr G.J. Thomas | Victoria Legal Aid |
PHILLIPS, J.A.:
This is an appeal, by leave, against sentence imposed in the County Court on 27 June 2002. The appellant, who was born on 13 February 1979 and is now 23 years old and who had no previous convictions, pleaded guilty to one count of attempted armed robbery and one count of armed robbery. The maximum sentence for the first is 20 years' imprisonment and for the second is 25 years' imprisonment. He was sentenced on the count of attempted armed robbery to imprisonment for two years and on the count of armed robbery to imprisonment for two-and-a-half years, the sentencing judge ordering, somewhat curiously, that one year of the latter sentence be served cumulatively on the former, thereby producing, the judge declared, a total effective sentence of three years' imprisonment, of which the appellant was to serve one year before becoming eligible for parole.
The appellant now appeals on the grounds that the sentence is manifestly excessive, that the judge did not give sufficient weight to mitigating factors put on his behalf, including his youth and the prospects for rehabilitation, and, importantly, that the judge erred in not distinguishing the head sentences imposed on the appellant and on his co-offender, one Jake Stinton. The appellant and Stinton were both sentenced at the same time, both pleading guilty to the offences with which they were charged.
The offences admitted by the appellant were committed on 20 November 2001. On that day at about 10.40 p.m. the appellant and Stinton, together with another who was subsequently dealt with in the Children's Court, entered an Avco Easy shop, attempting to rob it of money and cigarettes. They were disguised with beanies and sunglasses and, although the appellant was unarmed because he had left his knife in the car, the others carried a knife and a claw hammer. The operator of the shop threw one of them aside, grabbed a piece of wood and chased them all out of the shop before they could make any demands. They left the scene in the appellant's car. Hence the count of attempted armed robbery.
A little later, the appellant parked the car around the back of a 7 Eleven store and, while he stayed in the car, his two companions, again armed and disguised, entered the store through a side door. One of them jumped the counter, held a knife to the attendant's back and demanded that the till be opened, whereupon he took money. The other made demands and grabbed some cigarettes. The appellant entered the store, disguised and carrying a concealed knife, and grabbed cigarettes, leaving his fingerprints at the scene in the process. Attempts to have the store safe opened were unsuccessful and all three again fled.
The three of them were arrested later that night, buying petrol, when an observant policeman noticed that the number plate on the car had been altered with tape. When interviewed, the appellant made full admissions and subsequently pleaded guilty at the first available opportunity. The sentencing judge recognised that as evidence of remorse and, of course, the community was saved the inconvenience and expense of a trial.
The third offender who was subsequently dealt with in the Children's Court was 16 years old at the time and was sentenced to six months' detention in a youth training centre.
At the time of the offending Stinton was 21 years old: the appellant Awad was 22. Stinton pleaded guilty to one count of attempted armed robbery, that on 20 November already described, and to two counts of armed robbery, one committed as already described and the other on the previous day, 19 November. He was sentenced on the first count of armed robbery, that committed on 19 November, to imprisonment for two-and-a-half years, on the count of attempted armed robbery on 20 November to imprisonment for two years, and on the count of armed robbery on 20 November to imprisonment for two-and-a-half years. One year of each of the second and third of these sentences was ordered to be served cumulatively on the first. There was therefore a total effective sentence of four-and-a-half years and the minimum term was fixed at three years.
In concluding his sentencing remarks, the judge referred to the difference between the sentences imposed on Stinton and those imposed on the appellant Awad, saying:
"Stinton is to be eligible for parole after serving three years of a sentence of four-and-a-half years. Awad is to be eligible for parole after serving one year of a sentence of three years. The main factors behind that discrepancy are the additional conviction of Stinton and his relatively poor rehabilitation prospects."
It seems plain enough that, in fixing the minimum term for the appellant at one year only, the judge was recognising his prospects of rehabilitation. That is not to say that that factor was not taken into account otherwise, but counsel argued that, if it was brought to account in the fixing of the head term, too little weight must have been given to it. Mr Thomas contended that it cannot be right that the same head term was meted out to each on the two counts on which both were convicted, given the very different circumstances of the two offenders, and it is sufficient in this regard to refer to their antecedents in particular.
Thus, the criminal history of the co-offender Stinton may be summarised as follows: 40 findings of guilt arising out of ten appearances before the Children's Court between 1995 and 1998, none of which attracted a custodial disposition; 29 convictions arising out of three appearances before the Magistrates' Court between 1998 and 1999, attracting total effective detention periods in youth training centres of nine months or less on each occasion; and 12 convictions arising out of two appearances before the Magistrates' Court in 2001 resulting in non-custodial dispositions (a good behaviour bond and a community-based order). All these matters related predominantly to dishonesty and drugs. On the other hand, the appellant, who had no previous convictions, had been before the Children's Court on two occasions in 1995 and 1996 when he had been found guilty of a total of three charges of theft. On one occasion he was released on a bond to be of good behaviour for twelve months and, on the other, was fined $50. These two previous appearances may be described (as the judge said) as being for "minor dishonesty".
On the plea, appellant's counsel made mention of the low intelligence quotient of the appellant, but, as the judge said, it was not suggested that that had hindered his schooling, his TAFE course, his work or his relations with other persons. The explanation offered for the offending was "the emotional disturbance caused" to him as a result of his termination of his engagement to an Egyptian girl and the disapproval that that provoked in his parents and relatives in Egypt. Their disapproval, the judge accepted, led to the appellant's associating with a girl and others who were amphetamine users. He left his brother's home, he lost his employment and for some months he had no permanent place to live. Nevertheless his parents arranged bail on his arrest, he had returned home and he had stopped using drugs. The appellant's "present convictions for two serious offences are in stark contrast", said the sentencing judge, to the appellant's "background and good work record".
In the course of his sentencing remarks, the judge recognised the importance of the prospects of rehabilitation when sentencing this young man and recognised too that adult prison was likely to have a corrupting rather than a beneficial effect. None the less a period of imprisonment was called for, and that is not in dispute, although the thrust of Mr Thomas's submission this morning was that the period of imprisonment should have been wholly suspended.
Having listened to appellant's counsel, I have reached the conclusion that there was error below in the fixing of the head terms. Despite Mr Thomas's earnest submission that the appellant's good prospects of rehabilitation in this case were such as to warrant, if not indeed to require, a suspended sentence, I am far from persuaded that, given the seriousness of the offending, these sentences were manifestly excessive. In short, I am not persuaded that either was altogether beyond the range of sentences properly open to the sentencing judge. Nevertheless, I am persuaded that the head terms cannot be justified because they were the same as those given the co-offender Stinton. Like the sentencing judge, I do not distinguish between the roles they played in the offending but some distinction in sentencing
was called for given their very different personal circumstances, and, that not having been accorded, we must in my opinion allow the appeal, set aside the sentences imposed and re-sentence.
It was submitted on behalf of the respondent that, in re-sentencing, one cannot leave out of account the seriousness of the offending and the need for deterrence in such cases, and it must be borne in mind that while the offender was in his early twenties, he was but three months short of his 23rd birthday. I agree with this submission. I am clear that the seriousness of the offending cannot be left out of the equation; nor is it to be outweighed, as Mr Thomas was prone to suggest, by the prospects of rehabilitation.
After bringing to mind what was put on the plea on behalf of the appellant and what was found in his favour by the sentencing judge, but bearing in mind the circumstances of the offending, I would re-sentence the appellant as follows:
on the first count (attempted armed robbery), to one year and six months' imprisonment, and on the other count (armed robbery), to two years' imprisonment, with six months of the former to be served cumulatively on the latter, thereby producing a total effective sentence of two-and-a-half years. I would re-fix the minimum term at 12 months. If a declaration of pre-sentence detention is called for, a declaration should be made that 76 days be reckoned as time already served.
CHERNOV, J.A.:
I agree.
VINCENT, J.A.:
I agree.
PHILLIPS, J.A.:
The Court makes the following orders:
The appeal is allowed.
The sentences imposed below are set aside. In lieu it is ordered that on the count of attempted armed robbery the appellant is sentenced to one year and six months' imprisonment and on the count of armed robbery to two years' imprisonment. It is ordered that six months of the former be served cumulatively on the latter, thereby producing a total effective sentence of two-and-a-half years. It is ordered that the appellant serve 12 months' imprisonment before becoming eligible for parole.
It is declared that 76 days be reckoned as having already been served under these sentences and it is directed that the making of that declaration and its contents be noted in the records of the Court.
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