R v Benton
[2007] VSCA 71
•1 May 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 244 of 2006
| THE QUEEN |
| v |
| GRAEME ALLAN BENTON |
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JUDGES: | VINCENT and NEAVE JJA and KELLAM AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 May 2007 | |
DATE OF JUDGMENT: | 1 May 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 71 | |
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Criminal law – Sentence – Manifest excess – Whether sentencing judge properly took into account applicant’s early plea of guilty – Sentence imposed for armed robbery count at the upper end of the range – Significant and relevant criminal history – Whether sentencing judge failed to properly take into account the serious injury suffered by applicant – Parity between co-offenders – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | In person |
VINCENT JA:
The applicant pleaded guilty in the County Court at Melbourne, on 15 May 2006, to one count of armed robbery (count 1), one count of intentionally causing injury (count 2) and one count of possessing a registered firearm whilst prohibited (count 3).
He admitted 90 prior convictions or findings of guilt, arising from 17 court appearances between 1990 and 2003. They related, inter alia, to the intentional causing of serious injury, the intentional causing of injury, assault, conspiracy to commit armed robbery, the making of a threat to kill, aggravated burglary, the possession of a regulated weapon, committing an act of aggravated cruelty upon an animal, arson, and a variety of offences of dishonesty and a number of drug offences.
After hearing a plea in mitigation of penalty, the learned sentencing judge, on 21 July 2006, imposed the following sentences:
On count 1 - six years' imprisonment;
On count 2 - one year imprisonment;
On count 3 - one year imprisonment.
His Honour ordered that six months of the sentences imposed on each of counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on count 1. This created a total effective sentence of seven years' imprisonment, in respect of which a non-parole period of four years and nine months was fixed.
The present application is based upon the single ground set out in the applicant's Notice of Application, that the sentence is manifestly excessive. In support of that contention, Mr Benton, who has appeared before the Court unrepresented, submitted that:
1. The sentence did not reflect that any appropriate account was taken of his entry of a plea of guilty, or the early stage at which it was entered;
2.The sentence for armed robbery, he argued, was at the upper end of the range;
3.Inadequate account was taken of the serious injury he sustained shortly after the commission of these events and in related circumstances; and
4.He submitted that the sentences imposed involved a breach of the principle of parity with his co-offenders.
I now turn to the circumstances relating to the commission of the applicant's offences.
The Background
The applicant and two co-offenders, Brett Cummins and Damien Mason, in a substantial drug-intoxicated state, decided to commit an armed robbery upon a person who had supplied drugs to Cummins. The sentencing judge, on the material before him, accepted that, "in all probability", it was the applicant's idea to commit this robbery, as it was he who started a conversation about "ripping off" a drug dealer, and it was Cummins who volunteered the information as to who might be a suitable victim.
The applicant, armed with a semi-automatic pistol, then drove with his co-offenders from Ballarat to Melbourne. They secured some disguises and Cummins telephoned the victim and arranged to buy drugs. The dealer, a woman, arrived at the appointed location with her 15-year-old daughter. Mason drove the car containing the applicant and Cummins and stopped in front of the victim's car. The applicant, wearing a balaclava, then alighted from the vehicle and ran to the front of the victim's car, producing a pistol. He demanded that she open the door, putting the gun through the window and pointing it at her head. She complied, and he entered the car and made a demand for money. He searched the vehicle and took a number of items, including the victim's driver's licence that disclosed her address. He struck the victim in the face with the butt of his handgun, causing swelling to her right eye. As his demands for money were not met, he returned to his car, which was then driven off.
Somewhat surprisingly, the three men then drove to the dealer's house, where, presumably as a result of some communication with the victim, they encountered a group of Asian men armed with a Samurai sword. Although his companions suggested that that was an appropriate time to retreat from the locality, for some reason or another the applicant decided to persist, and an altercation between the two groups ensued, in which he sustained very severe stab wounds to his back and a serious laceration to his left hand, which was virtually severed.
The applicant was, on 17 May 2005, admitted to the Bacchus Marsh Hospital, where he was located by the police. He was formally interviewed on 23 May 2005 and gave what is described as a "no comment" interview.
I now turn to the grounds of the application.
The Grounds
It is, as the applicant has submitted to this Court, appropriate to describe the sentence imposed upon him for armed robbery as being at the upper end of the range. However, it must also be borne in mind that he has a very substantial criminal background, involving offences of violence and dishonesty, and he was, at the time of the commission of the offences under consideration, on parole following his conviction for conspiracy to commit an armed robbery.
As the sentencing judge indicated, armed robbery is under almost any circumstances to be regarded as an extremely serious offence. When it is perpetrated by an individual who is armed as the applicant was, and with his criminal background, it is to be regarded as perhaps even more serious indeed. It is only to be anticipated that substantial terms of imprisonment will be imposed in such circumstances. It is not for this Court to determine whether or not we would have imposed the same sentence as that handed down in the court below, but whether the sentence can be seen to be outside the range of those available in the proper exercise of sentencing discretion. When regard is had to the various matters to which I have adverted, I am unpersuaded that that could be said to be the case.
It is evident from his Honour's sentencing remarks that he addressed the applicant's plea of guilty and the stage at which it was entered. There is nothing in those remarks that suggests that he fell into error in his consideration of the relevance of those features or the manner in which they were to be taken into account, and the sentence imposed does not, of itself, bespeak error.
Further, it was submitted that inadequate account can be seen to have been taken of the injury sustained by the applicant as a result of his confrontation with the Asian men at the victim's home. However, it is again clear enough that this feature was taken into account by the sentencing judge. With respect to it, he stated, at one point in his sentencing remarks:
"As a direct result of your persistence [referring to the applicant's continuation of the confrontation] you were attacked by that group and suffered very severe injuries indeed, involving stab wounds to the back and a serious laceration to your hand, which, on reading the material, was virtually severed. You continue to have problems as a result of that attack on you and I will refer to that later."
When he returned to the matter, he stated:
"I take into account significantly the fact that this custodial sentence will be served by you in a situation where you feel particularly vulnerable. The injuries that you received on that night have left you effectively one-handed. You continue to suffer pain. You have been on morphine now for a long time. I am disturbed that somebody with prior convictions for the use of heroin should have been kept on a morphine program for so long. You are acutely aware of the difficulties that will be imposed upon you when they endeavour to withdraw you from morphine. You will be in pain during the course of your sentence and, I suspect, because of your background and psychological difficulties, will always be at risk from other prisoners. Your capacity to defend yourself is clearly limited. I take all these matters into account."
There is nothing in those remarks that suggests that his Honour did not attribute to this feature a deal of significance in the determination of an appropriate sentence.
Finally, the applicant has contended that the principle of parity of treatment of co-offenders has been breached in that the co-offender Cummins, in particular, was sentenced to a lesser term of imprisonment. This aspect was directly addressed by his Honour and it is apparent again that no justification exists for intervention by
this Court. As was mentioned in the course of discussion, the applicant initiated the offending on this night and his role in it was clearly more significant than that of Cummins. In addition, Cummins had sustained an organic brain injury in a motor vehicle accident in November 2000, which the sentencing judge accepted had resulted in frontal lobe damage that impacted upon his conduct. His Honour took the view that the principles outlined by the Court in R v Tsiaras[1] were applicable and that the need for general deterrence needed to be sensibly moderated, and that this should be reflected in the ultimate disposition. I am unpersuaded that the disparity which resulted entitles the applicant to any legitimate or reasonable sense of grievance.
[1][1996] 1 VR 398.
Perusal of the sentencing judge's remarks discloses only one possible sentencing error, and that related to his taking into account the possibility that the applicant's parole would be breached following the imposition of sentence by him. However, it is to be observed that he did take that matter into account in the applicant's favour, and accordingly the benefit to be derived from it could hardly be said to constitute a miscarriage of justice as far as the applicant was concerned. Otherwise, the sentencing remarks were carefully constructed and clearly reflected his Honour's attention to all of the relevant sentencing considerations and principles.
Finally, Mr Trapnell, who appears on behalf of the Crown, has stated that he is unaware of any breach of sentencing principle in relation to this matter.
In all of these circumstances, it is my view that the application should be dismissed.
NEAVE JA:
Although the applicant's sentence was at the upper end of the range of sentences imposed for armed robbery, he has a very lengthy history of convictions for violent offences and he was on parole for earlier offences when he committed
these offences. As the learned sentencing judge made clear in his sentencing remarks, there are a number of factors that distinguish the situation of the applicant from that of his co-offender Cummins, so that the higher sentence imposed on the applicant does not offend the principle of parity.
Apart from the matter referred to by Vincent JA which benefited the applicant, there is no error in the sentencing remarks of the learned sentencing judge. In particular, his Honour gave appropriate weight to the serious injury suffered by the applicant to his left hand and to the fact that this would make his period of imprisonment more onerous. Nor does the length of the sentence indicate that his Honour erred.
I would also refuse the application.
KELLAM AJA:
For the reasons stated by the learned presiding judge, I agree that this application should be dismissed.
VINCENT JA:
The application stands dismissed.
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