R v Brincat
[2000] VSCA 134
•19 July 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 269 of 1999
| THE QUEEN |
| v |
| VICTOR BRINCAT |
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JUDGES: | PHILLIPS, CHARLES and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 July 2000 | |
DATE OF JUDGMENT: | 19 July 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 134 | |
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Criminal law - Sentence - Attempted armed robbery - Whether sentencing judge failed to take co-operation with police into account - Whether sentence manifestly excessive - Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr R.A. Elston | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr W.B. Lindner | Victoria Legal Aid |
PHILLIPS, J.A.:
I will ask Buchanan, J.A. to deliver the first judgment.
BUCHANAN, J.A.:
The appellant pleaded guilty in the County Court to one count of attempted armed robbery and one count of being a prohibited person in charge of a firearm. The maximum penalty for the first offence was a sentence of 20 years' imprisonment; the maximum penalty for the second offence was 7 years' imprisonment or a fine of $60,000. After the making of a plea on behalf of the appellant, he was sentenced to a term of 5 years and six months' imprisonment on the charge of attempted armed robbery and to a concurrent term of 6 months' imprisonment on the charge of possession of a firearm. A term of 3 years' imprisonment was fixed before the appellant was to be eligible for parole.
The appellant was granted leave to appeal by the President under the provisions of s.582 of the Crimes Act 1958.
The appellant had the misfortune to commit the offences when he was under police surveillance. He travelled from a flat to the Footscray branch of the National Australia Bank. He then changed his clothes and travelled to Carlton. Pulling a beanie down over his face and armed with an imitation pistol, the appellant entered the National Australia Bank in Lygon Street. The appellant approached the counter where a teller was serving a customer. He produced the imitation firearm, which he pointed at the teller. The appellant said to the customer, "Get down, get down". The customer crouched down as ordered. The appellant demanded of the teller, "Give me all your large bundles" several times. The teller explained that she was not able to get the money from the machines used in the bank, and could only give him coins. The appellant threw himself on to the counter, reached across and opened the teller drawer which contained only coins. He again demanded, "Give me the large bundles", and was again told by the teller that this was not possible. The appellant left the bank, ran to a motor car and drove away.
The appellant drove to the vicinity of the National Australia Bank situated on the south-east corner of the intersection of Victoria Street and Lansdowne Street, East Melbourne. He then drove to Stewart Street, Melbourne and parked his car between Franklin Street and A'Beckett Street. The appellant stepped out of his car wearing different clothes to those worn when he attempted to rob the National Australia Bank at Carlton forty minutes earlier. The appellant went towards the Bank of Melbourne on the corner of Franklin Street and Elizabeth Street, Melbourne. He stood on the north-east corner of this intersection and watched the Bank of Melbourne premises for a short time. He walked up and down Elizabeth Street for a short distance before returning to his car in Stewart Street, where he was arrested by the police.
The appellant is 39 years of age. His life has largely been one of crime. His first convictions for theft occurred when he was 17 years of age. He has 48 prior convictions from 23 court appearances in Victoria, the Northern Territory and South Australia. They include four convictions for theft, assault in company, assault with a weapon, assault police, assault occasioning actual bodily harm, inflicting grievous bodily harm, seven convictions for escaping from lawful custody, convictions for burglary and causing wilful damage and six convictions for armed robbery.
The offences took place on 15 June 1999. The appellant had been released only 66 days earlier after serving a lengthy term of imprisonment for armed robbery. In 1992 (and before the abolition of remissions in Victoria) the appellant was sentenced to a term of 12 years and 6 months for armed robbery and was ordered to serve a minimum of 9 years before he was to be eligible for parole. He was then transferred to prison in Western Australia. The appellant contends that he spent at least one-and-a-half years longer in prison than he would have spent if he had served the term in Victoria, and as a result, according to the psychologist, Mr Joblin, "that legitimises in his mind further anti-social behaviour".
The appellant's father was a violent man who frequently struck the appellant and his brother for little reason. His parents' marriage ended when his father repeatedly stabbed his mother with a knife and was consequently imprisoned. The appellant left school at the age of 16 years in order to support the family as his father had been sent to prison. The appellant worked as a storeman and cook.
Both Mr Joblin and another psychologist, Mr Watson-Munro, whose reports were available to the sentencing judge, noted that the appellant had a long history of gambling. Several of the crimes he committed were fuelled by his need for money to pay gambling debts. Mr Watson-Munro's report was made in 1992, while Mr Joblin's report was dated 16 September 1999. Mr Joblin found it difficult to provide a prognosis but appeared somewhat pessimistic as to the prospect of the appellant pulling out of the cycle of crime followed by imprisonment.
The appellant contends that there was a specific error in the sentencing process in that no account was taken of the fact that the appellant encouraged his de facto wife to assist the police in their investigation of certain crimes unrelated to the appellant, an episode which was relevant to the appellant's prospects of rehabilitation. The sentencing judge was informed of the incident on the day on which the appellant was sentenced. In the course of his sentencing remarks the judge said:
"Like Mr Joblin, I cannot have any confidence that you will be rehabilitated, at least in any short term. Special deterrence is a significant sentencing factor. This is so despite your plea of guilty at the earliest stage and what, on the face of it, seems to be other evidence of remorse, for example, the letters of apology that you wrote and your statements through your counsel that you realise that what you did was wrong and stupid. I would like to hope that you wish to be rehabilitated, but I have no great confidence in that hope being fulfilled.
I had written that before I heard the material presented this morning. That material does cast a slightly different light on matters. It justifies a finding that at least on that occasion, the occasion in respect of which the material was led, at least on that occasion you acted in a manner not to have been expected of you in light of your history. It strengthens the hope of your rehabilitation and increases, but increases only a little, the prospects of it being fulfilled. I still have no great confidence, but maybe there is more than a glimmer of light."
At the conclusion of his sentencing remarks the judge imposed the sentences the subject matter of this appeal.
Counsel for the appellant contends that the proper inference to be drawn from the foregoing circumstances is that the sentencing judge wrote out his reasons and the sentence he had decided before receiving the information that caused him to revise his view of the chance of the appellant being rehabilitated, and modified his sentencing remarks by inserting the additional words I have read, but left the sentence unmoderated.
In my opinion there is no warrant at all for drawing such an inference. Before he pronounced his sentence the judge received and expressly acknowledged the information as to the appellant's seemingly new attitude to the authorities and stated his view of its significance in the context of sentencing, a view with which counsel for the appellant has no quarrel. I can see no basis for thinking the matter was ignored by the judge in subsequently pronouncing the sentence which he thought was appropriate.
The first ground of appeal is that the sentence was manifestly excessive. Counsel for the appellant treated as particulars of that ground other grounds, that insufficient weight was given to mitigating factors such as the plea of guilty and the appellant's personal circumstances and gave too much weight to the element of deterrence.
The crime of attempted armed robbery is serious indeed. As I have said, the maximum penalty is 20 years' imprisonment. This attempt failed only because the appellant found only coins and not notes in the bank which he entered. I note that the bank teller thought that the pistol wielded by the appellant was a toy. Nevertheless she submitted a victim impact statement describing a continuing emotional reaction to her experience. As the sentencing judge observed, the appellant wrote letters of apology to the bank teller and others present in the bank, and he said, "On the face of it they seem to be other evidence of remorse." The sentencing judge also acknowledged the appellant's early plea of guilty.
Notwithstanding those mitigating factors, in the light of the appellant's record I do not regard the sentence imposed upon him as outside the range available to the sentencing judge. The previous criminal history of the appellant shows that the offences were not uncharacteristic aberrations but part of a long-standing habit of disobedience to the law. The sentencing judge was entitled as a consequence to conclude that deterrence and protection of society warranted a severe penalty. The appellant's prior convictions were not to be given such weight as to lead to a penalty disproportionate to the gravity of the offence. In my opinion the sentences imposed upon the appellant are not disproportionate.
I would dismiss the appeal.
PHILLIPS, J.A.:
I agree.
CHARLES, J.A.:
I also agree.
PHILLIPS, J.A.:
The order of the Court is:
Appeal dismissed.
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