R v Bisset
[2005] VSCA 10
•7 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 205 of 2004
| THE QUEEN |
| v. |
| BEN ROBERT BISSET |
---
JUDGES: | VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 February 2005 | |
DATE OF JUDGMENT: | 7 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 10 | |
---
Criminal law – Sentencing – Kidnapping and theft – Kidnap of service station consol operator following armed robbery – Victim released after only a very short time – Offender heroin addict with previous court appearances of a minor nature – Application dismissed
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Carlin | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr R. Melasecca | R. Melasecca |
VINCENT, J.A.:
I will invite Nettle JA to deliver the first judgment in this matter.
NETTLE, J.A.:
On 12 August 2004 the applicant, Ben Robert Bisset was arraigned before his Honour Judge Duckett in the County Court at Melbourne on one count of armed robbery (Count 1); one count of kidnapping (Count 2); and one count of theft (Count 3), to all of which he pleaded guilty. After hearing a plea in mitigation, on 20 August 2004 his Honour sentenced the applicant to four years imprisonment on Count 1; four years imprisonment on Count 2, of which his Honour ordered that two years be served cumulatively to all other sentences; and one month imprisonment on Count 3, which his Honour also ordered be served cumulatively to all other sentences. The applicant thus received a total effective sentence of six years and one month imprisonment, and his Honour ordered that the applicant would be eligible for parole after serving four years of that sentence. The applicant now applies for leave to appeal from the sentence.
The facts
At the time of the offences, the applicant was a heroin addict, and had been so for some seven years, and it was suggested at the plea hearing that the applicant’s aim in committing the offences was to feed his drug addiction. As will appear, however, the learned sentencing judge was not necessarily satisfied that drug addiction was the motivation or at least the sole motivation for the commission of the offences.
The offences were committed on 7 August 2003, shortly after midnight. The applicant sat in his car in a truck lay-by near a petrol station on the Princes Highway, Officer for about half an hour and then proceeded with the robbery. He first put petrol into his car and then entered the service station shop wearing a beanie pulled down over his face and carrying a steak knife which he had taken from a friend’s house earlier in the evening. The only other person present was a young female service station attendant and the applicant told her that this was a hold-up and demanded money. She handed over $180. The applicant then directed her to get out from behind the shop console, which she did, and then, gesturing with the knife, ordered her to go outside and into his car. She was crying and at first she refused to get into car. She offered to walk away from the service station so that the applicant could leave and follow her if he wished. But he refused the offer and insisted that she get in. She went with him fearing that she would be killed or raped and she was bawling and struggling to breathe. Then after travelling only a short distance the applicant stopped the car and the attendant escaped without opposition. She ran into bushes and from there back to the service station where she raised the alarm.
As the applicant drove back towards Dandenong he passed a massage parlour and there spent $80 of the $180 on a what the judge described as “a service”. He next travelled on to Springvale where he sought but was unable to buy drugs. From there he travelled to the city where he bought alcohol at a strip club and paid for a private dance. Later he was contacted by police on his mobile phone and asked to drive to Narre Warren police station, and he did, arriving there at 5.15 a.m. the next morning.
The attendant’s victim impact statement shows that for many months after the offences she remained terrified that the applicant would return to attack her and that she took extreme measures at home to prevent that occurring. She was unable to return to night shift work and at the time of sentencing she was still suffering from nightmares and fearful for her safety.
At the time of sentencing the applicant was 25 years of age and admitted to a total of 37 prior convictions from nine previous court appearances. They were largely related to offences of dishonesty and drug-related matters, although many were of a relatively minor nature and the applicant had not previously been sentenced to immediate imprisonment. But he had also attended at Odyssey House on several occasions in attempts to rid himself of drug addiction, and he had failed on each occasion.
He was first admitted to Odyssey House in October 2001 following the imposition of a suspended sentence of imprisonment. Thereafter he absented himself from Odyssey House after eight weeks for two periods between October 2001 and 30 June 2002, returning after the first absence for a period of three weeks and after the second for a third period of two months. During that period of two months he formed a relationship with a woman and on 30 June 2002 they left Odyssey House together as partners with the aim of returning to a normal life in the community. But by December 2002 they were both using heroin again and in January 2003 the applicant spent a week in a psychiatric ward suffering from drug induced psychosis. In February 2003 the two of them returned to Odyssey House and they stayed there together as partners for some time. But the applicant left again shortly before committing the offences on 7 August 2003. Following his arrest on 7 August 2003 the applicant remained in custody until 29 August 2003 when he was released on bail on condition that he return to Odyssey House and remain there, which he did. On 20 September 2003 the applicant’s partner bore him a daughter and she later moved to supported accommodation arranged by Odyssey House where she and the applicant shared the care of their daughter until the time that the applicant was imprisoned. So far as one can tell she and the child are progressing well.
The judge’s sentencing remarks
The judge noted in his sentencing remarks that the applicant had absented himself from Odyssey House on five separate occasions between October 2001 and August 2003, thereby depriving himself of the support and help that Odyssey House was able to provide, and his Honour expressed surprise that the applicant had been re-admitted on six occasions. His Honour said that it caused him to question the favourable prognosis given by witnesses called on behalf of the applicant.
The judge also explained that he rejected a submission made by counsel for the applicant that a wholly suspended sentence of three years imprisonment would be an appropriate sentencing disposition. As his Honour put it, given the serious nature of the applicant’s offending and his only very recently improved record at Odyssey House, he regarded such a suggestion as a “startling proposition”. The applicant had abducted a young female in terrifying circumstances. It was only appropriate that the applicant now take responsibility for his drug rehabilitation in a prison environment over the next few years.
Earlier application for leave to appeal
On 12 November 2004 Chernov, J.A. refused the applicant’s application for leave to appeal pursuant to s.582 of the Crimes Act 1958. His Honour rejected a submission made in support of grounds of appeal 1 and 2 that the sentencing judge had not sufficiently recognized what was said to be “significant and exceptional rehabilitation that had taken place” on the part of the applicant after the commission of the offences and that the sentencing judge had not considered the established principles relating to significant rehabilitation by drug offenders. His Honour perceived it to be obvious from the sentencing judge’s remarks that the judge was well aware of the significance of and had regard to the applicant’s psychiatric history, his progress at Odyssey House during his various stays there and to such rehabilitation as the applicant had achieved.
Chernov, J.A. also rejected a submission made in support of grounds of appeal 3 and 11 that the sentencing judge had been bound to accept and act on the basis of expert evidence given on the plea that the applicant’s chances of rehabilitation were high. As his Honour explained, the sentencing judge’s remarks made clear that he had had regard to that evidence, but he was also entitled to look to all the circumstances to determine whether the assessment was entirely justified; particularly the applicant’s chequered history of attempting to overcome his drug addiction.
Chernov, J.A. next rejected a submission made in support of ground 8 of appeal that the sentencing judge had paid insufficient regard to the applicant’s motive for committing the offences. His Honour noted that the applicant had not availed himself of the opportunity which had been afforded him by the police and before the court to explain his motivation, and that the applicant had spent some of the proceeds of the robbery on personal matters.
Chernov, J.A. was also not persuaded by a submission made in support grounds 12 to 15 of appeal that the applicant’s alleged “exceptional rehabilitation”, his youth and his psychiatric history made him an inappropriate medium for a “deterrent sentence”. In his Honour’s opinion the extent of the psychiatric material before the sentencing judge was insufficient to outweigh the need for general deterrence, and the applicant’s relative youth was not such as to take the matter any further. Thus in his Honour’s opinion grounds 12 to 15 were not reasonably arguable.
Chernov, J.A. also rejected grounds of appeal 4 and 5 for similar reasons. Ground 4 asserts that the sentencing judge gave insufficient weight to the applicant’s rehabilitation and Ground 5 asserts that the sentencing judge gave insufficient weight to the applicant’s “youth”. His Honour noted that it was plain from the sentencing judge’s remarks that the judge had taken the applicant’s age and prospects of rehabilitation into account and that there was nothing to indicate that the judge had given insufficient weight to either consideration. Moreover, as his Honour observed, this was a case involving a vulnerable “soft target” and a degree of planning, and the applicant had acted in such a way as to inflict terror on the victim. General deterrence was thus a major sentencing consideration and the mitigating factors which might otherwise have operated in the applicant’s favour - his age and his prospects of rehabilitation – had to give way to some extent to primary sentencing considerations of deterrence, denunciation and the protection of the community.
Chernov, J.A. next rejected submissions made in support of grounds of appeal 6 and 7, that the sentencing judge did not give any or any sufficient sentencing discount for the applicant’s plea of guilty or for what was said to be the applicant’s “extensive remorse and co-operation”. His Honour considered that it was evident in the sentencing judge’s sentencing remarks that the judge had taken both considerations into account and that there was no reason to conclude that he had given insufficient weight to either of them.
Chernov, J.A. was equally unimpressed by submissions made in support of ground 10 of appeal that the sentencing judge had misinterpreted the evidence as to the applicant’s prospects of success. To the contrary, as his Honour remarked, in view of the applicant’s history, it was hardly surprising that the sentencing judge had characterised as a “startling the proposition” that the applicant should receive a wholly suspended sentence. In those circumstances the sentencing judge was entitled to conclude that the applicant’s prospects of success were not as sound as claimed.
Chernov, J.A. rejected submissions made in support of ground 10 of appeal, that the form of the judge’s expression as to cumulation was outside the ordinary form of a cumulation direction. His Honour thought it was clear enough as to what the sentencing judge had intended to achieve and that there was no error in treating the offence of kidnapping as an aggravating feature of the offence of armed robbery. The judge had noted that a particularly aggravating aspect of the applicant’s offending in the context of the totality of the offending was the kidnapping of the victim.
Chernov, J.A. also rejected a submission in connection with grounds 20 and 22 of appeal that the sentencing judge had erred in not treating the applicant’s periods of residence in Odyssey House as the equivalent of pre-sentence detention or in otherwise failing to take those periods of residence into account. His Honour considered that residence in Odyssey House was not equivalent to pre-sentence detention, because it was voluntary, and that the judge had indeed otherwise taken into account that the applicant had spent a considerable time in that institution.
Finally, his Honour rejected the contention, made in support of ground 21 of appeal, that the sentence was manifestly excessive. Given the serious nature of the offences and the applicant’s criminal history, his Honour thought the proposition not to be reasonably arguable, despite the mitigating factors to which attention has already been directed.
The submissions on appeal
In substance the submissions made today on behalf of the applicant do no more than repeat the submissions made before Chernov, J.A., and accordingly it is unnecessary to restate them. Despite, however, what was said by Chernov, J.A. on the last occasion, it has been urged upon us that we should take a different view and so allow this application. I am not convinced. Having listened intently to all that has been said on behalf of the applicant, I am in agreement with the reasons given by Chernov, J.A. for rejecting the submissions made on behalf of the applicant and with respect I adopt them as my own.
As the argument developed this morning, Mr Melasecca on behalf of the applicant placed most reliance on a proposition that the judge gave insufficient weight to the idea that when a young drug addicted offender commits an offence as a result of a troubled psychiatric history and then following the commission of the offence engages in significant and exceptional rehabilitation, the principles of deterrence may be marked by a sentence of imprisonment which allows rehabilitation to continue but does not involve the immediate confinement of the offender. Reference was made to a large number of authorities which were said to show when the facts of a case may form an exceptional situation which is not only unique but so strong as to demand a deviation from the general rule in respect of deterrence, and it was submitted that cases in which drug addicted offenders are truly reclaimable with a real prospect of rehabilitation are within that class. It was contended that the judge had plainly erred in failing to give due recognition to those principles and as well as or because of that error in failing to comprehend the significance of evidence given on the plea by staff of Odyssey House, to the effect that the applicant had reached a stage since returning to Odyssey House on bail where his chances of beating his addiction were in the order of between 95% and 98%. On that basis it was said that the only course reasonably open to the judge was to structure a sentence which enabled the applicant to return immediately to Odyssey House to complete his rehabilitation.
It is of course not in doubt that the facts of an individual case may be such as to make rehabilitation more important than general deterrence. Generally speaking it is also not in doubt that in some cases the fact that an applicant has engaged in exceptional rehabilitation is sufficient when taken with other facts of the case to result in a sentence of imprisonment which allows rehabilitation to continue without the immediate confinement of the offender. To describe this in terms of a principle, however, is really to misstate the position. In truth it is no more nor less than the result of applying general sentencing principles to the particular facts of a case. So in this case, as in all others, the appropriate sentencing disposition is dependent on the particular facts. Principal among those facts, for present purposes, is that the judge was not satisfied that return to Odyssey House would likely be as successful as had been claimed. And for the reasons already given, I consider that it was open to his Honour to take that view of the facts. To that may be added that there is no reason to think that the applicant’s rehabilitation could not continue in gaol, as indeed was suggested in the course of the evidence, even if not as quickly or easily as in Odyssey House.
The second matter upon which Mr Melasecca put considerable weight this morning was the submission that the judge had erred in treating the kidnapping as an aggravating circumstance of the armed robbery and thus had imposed a measure of double punishment for the same offence. That contention depended in part upon the proposition that a sentence of four years for the armed robbery was manifestly excessive. It was submitted that in the absence of the kidnapping one could not reasonably conceive of a sentence of four years being imposed for this offence of armed robbery and so the fact that it was imposed must mean that the kidnapping was treated as an aggravating circumstance.
It is sufficient to say of that submission that, even if there had been no kidnapping at all, a sentence of four year’s imprisonment is in my opinion well within the range for armed robbery of a young female attendant of a service station in the middle of night in circumstances which are likely to have filled her with terror.
The final matter upon which Mr Melasecca placed emphasis this morning was the contention, which as has been seen was rejected by Chernov, J.A., that the judge had erred in failing to treat the applicant’s period of residence in Odyssey House following his release on bail as so akin to pre-sentence detention as to warrant a sentencing discount. Reference was made to the decision of the New South Wales Court of Criminal Appeal in R v Cartwright[1] in which Hunt, C.J. at CL equated a period of time in which a prisoner under the control of Federal police and assisting them with their inquiries as akin to pre-sentence detention and it was submitted that in point of principle, a period of residence in Odyssey House was roughly speaking the same.
[1](1989) 17 N.S.W.L.R. 243 at 258-9.
I reject the analogy. If I may say so with respect I can well understand why time under the supervision of police might be equated to custody. But as the sentencing judge rightly observed, the applicant’s residence in Odyssey House was voluntary.[2] He had the choice to remain in custody or to go free on bail on condition that he reside at Odyssey House. He chose the latter.
[2]R v. Eastway N.S.W.C.C.A., 19/5/92; BC 9202732 at 7.
No error is shown
In the result, I see no error of principle in the sentencing judge’s sentencing remarks and I do not consider that the sentences imposed were manifestly excessive. Despite the mitigating factors of which counsel for the applicant has sought to make so much, and despite such sympathy as one might have for the applicant because of his drug addiction, it remains that the applicant’s offences were callous, calculated crimes committed against a defenceless young woman in frightening circumstances,
and the community expects such offences to be met with stern and just punishment in which specific and general deterrence play considerable parts[3]. As Winneke, P. pointed out in R v Reddrop[4]:
“No matter how sympathetic one might be towards those who have allowed themselves to become hooked on heroin, the courts have said time and time again that crimes of violence of this sort must attract condign punishment whether or not committed for the purposes of feeding a heroin addiction.
[Such a] crime, I think, can be properly described as a callous crime committed against a defenceless young girl in frightening circumstances…[and t]he community expects such a crime to be met with stern but just punishment in which both general and specific deterrence must play their part. The maximum penalty for armed robbery has recently been increased to 25 years and thus reflects the seriousness in which it is viewed by the community.”
[3]R v Reddrop [2000] VSCA 101 at [15]- [17].
[4]ibid.
So therefore while the learned sentencing judge was required to take into account the several factors urged in mitigation, and his Honour did, he was required also to bear in mind that drug addiction can be no excuse for the commission of the crime. Otherwise, crimes which would violate the community’s fundamental values will be allowed to go improperly punished.
Conclusion
It follows in my judgment that there is no basis for interfering with the sentence imposed and I would dismiss the application.
VINCENT, J.A.:
For the reasons advanced by Nettle, J.A. and earlier by Chernov, J.A., I agree that this application should be dismissed.
CUMMINS, A.J.A.:
I also agree and for those reasons.
VINCENT, J.A.:
The order of the Court is that this application is dismissed.
---