R v Calcedo
[2004] VSCA 80
•5 May 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 161 of 2003
| THE QUEEN |
| v. |
| PAUL CALCEDO |
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JUDGES: | BATT, CHERNOV and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 May 2004 | |
DATE OF JUDGMENT: | 5 May 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 80 | |
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Criminal Law - Sentence - Attempted armed robbery - Recklessly causing serious injury - Use of knife to rob newsagency - Good samaritan stabbed after intervening to prevent robbery - Total effective sentence of 15 years with 10 years non-parole period held manifestly excessive - Sentences of 6 years and 8 years respectively with TES 11 years with 8 years NPP substituted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs S. Pullen | K. Robertson, Solicitor for Public Prosecutions |
For the Applicant | Mr M.J. Croucher | Slades & Parsons |
BATT, J.A.:
I will ask Eames, J.A. to give the first judgment in this matter.
EAMES, J.A.:
On 30 May 2003 a judge at the County Court sentenced the appellant to eight years' imprisonment for attempted armed robbery, count 1, and ten years' imprisonment on a count of recklessly causing serious injury, count 3. Convictions on those counts followed verdicts of the jury, which had acquitted the appellant on count 2, a count of intentionally causing serious injury. Although a trial had been conducted, the appellant had offered to plead guilty prior to the first committal mention to the two counts on which the jury eventually found him guilty. His offer to plead to those counts was rejected by the Director of Public Prosecutions, who pressed for a conviction on the count of intentionally causing serious injury.
The appellant pleaded guilty before the jury on the two counts, counts 1 and 3, and not guilty to count 2. During the course of the trial the appellant gave evidence and it must be taken that the jury accepted his account of him not intending to cause the injuries occasioned. The learned sentencing judge ordered that five years of the sentence on count 2, the attempted armed robbery count, be served cumulatively with the sentence on count 3, making a total effective sentence of 15 years' imprisonment. His Honour fixed a non-parole period of ten years and declared 505 days pre-sentence detention.
The appellant was granted leave to appeal on 18 December 2003 by a judge of this Court.
Three grounds of appeal have been raised complaining, in turn, that the judge failed to give sufficient weight to the early plea of guilty; that the judge failed to take into account the appellant's prospects of rehabilitation; and, finally, that the sentence was manifestly excessive. It was the last ground which was the substantial basis of the challenge to the sentences.
The offences occurred on 10 January 2002. The appellant entered the Carrum newsagency, a business which was just around from the corner from where he was then living. The appellant, then a drug addict, told the jury that he had earlier injected temazepam, a drug he had not used before. After having a discussion with friends in the house about their need for money, he volunteered to obtain funds. He took a carving knife from the kitchen and wearing a pair of sunglasses walked to the newsagency, where he threatened the two women who were then present in the store, one being a sales assistant and the other the co-proprietor of the store. They told him there was no money. That proved to be so but the appellant searched the drawers of the shop in any event. Whilst the attempted robbery was taking place a customer, John Hoyne, walked into the shop and seeing the robbery taking place, grabbed the appellant from behind and then punched him very severely to the head and attempted to push the appellant to the ground. As he was being struck from behind and whilst he was bent over with his back to Mr Hoyne, the appellant lashed out with the knife on at least three occasions, striking Hoyne in the thigh, the abdomen and the right arm.
Mr Hoyne told police, and the appellant agreed, that he struck the appellant some 20 times and said that he had begun to punch the appellant before he realised that he was armed with the knife. In his evidence the appellant told the jury that he had tried to give up when Mr Hoyne started striking him but said that Mr Hoyne kept hitting him and he could feel himself suffocating because he was being held in the strangle-hold or else was being held by the jumper so that it was around his throat. He said that he struck backwards with the hand holding the knife in order to try to get whoever it was away from him and said he did not see if anyone was hurt prior to running off. He said the incident took a matter of seconds or was less than a minute. As soon as the person let go of him, that was the end of it and he ran out.
Upon Mr Hoyne releasing his grip the appellant ran from the store and Hoyne collapsed, being very severely injured. The injury to the abdomen had penetrated the cavity and loops of bowel had fallen through the wound. A length of bowel was later removed in surgery. The learned sentencing judge described the injuries as being grave and life-threatening and said that apart from requiring a laparotomy, Mr Hoyne needed repairs to the damaged organs within the abdominal cavity and a reconnection of his bowel. He was in hospital for nine days.
The two women who were present at the time of the attack in their victim impact statements have described their stress and anxiety which has flowed from these events. Their lives and sense of security have been greatly impaired as a result of witnessing these events.
The appellant admitted 69 previous convictions from 30 court appearances between January 1975 and December 2000. He was aged 44 years at the time of the offences and 45 at the time of sentence.
His first conviction was at the age of 18 for theft and his first offence of violence was a conviction for assault in company when aged 19 in 1976. Despite numerous offences between that year and 1984, his first term of imprisonment was not imposed until May 1984, when he was sentenced to concurrent sentences of three months' imprisonment for theft and burglary. In submissions on his behalf it was said whilst in prison on that occasion he commenced intravenous drug use and emerged from prison with a heroin habit. Up to 1984 he had maintained full employment as a carpenter.
From 1984 until 1995 the appellant was heavily involved in the drug scene, committing offences of violence and dishonesty which included his first count of robbery for which he was sentenced in 1985 to three years six months' imprisonment with a non-parole period of two years six months.
In July 1987, whilst already imprisoned, he was sentenced for an armed robbery offence and also on a count of causing injury intentionally, which involved a robbery of a drug dealer and for which he was again sentenced to three years six months with a non-parole period of two years six months.
In 1990 he was sentenced on counts of aggravated burglary, armed robbery, aggravated indecent assault, false imprisonment, burglary and causing injury intentionally. Those offences arose out of a home invasion with his then female partner, later his wife and the mother of his twin children. He was convicted and sentenced to a total effective sentence of ten years six months with a non-parole period of eight years six months. Later that same year he was convicted of causing serious injury recklessly, and sentenced to three years six months which was served concurrently with the longer sentence he was then undergoing. That offence related to a shotgun wounding of a person in the drug scene, the man being shot in the stomach during a struggle.
In November 1995 he was released on parole. Further convictions for dishonesty offences occurred in 1998 and 2000, together with a conviction for drug cultivation and related offences. He was sentenced to 12 months' imprisonment for theft in December 2000.
As his Honour rightly recognised, the appellant's prior convictions are of particular importance in this case.
The learned sentencing judge said that the crimes were of such gravity that principles of denunciation and general and specific deterrence were important factors, as was the need to ensure protection of the community. His Honour said the appellant had shown a propensity for serious criminal activity notwithstanding prior lengthy terms of imprisonment. Those factors, his Honour found, indicated that there was "a sustained intent of Mr Calcedo to participate in serious crime and cast doubt upon the chances of him effecting reformation or rehabilitation." .
His Honour noted that the appellant pleaded guilty to the two counts at the earliest opportunity, and had made admissions to the police. He accepted that his plea of guilty constituted remorse, but his Honour said, however, that any remorse "requires a tempering by the reality of the situation which he created and the violence which he undertook to attempt to escape from the scene." His Honour concluded that these were crimes at the serious end of the scale inflicted on "soft targets".
Counsel for the appellant submitted that the sentences imposed were simply massive and were wholly disproportionate to the objective circumstances of the offending. He submitted that the penalty imposed for recklessly causing serious injury was longer than that which would normally be imposed for offences of manslaughter or for intentionally causing serious injury, and that would be so even if sentencing for those offences occurred after a person had pleaded not guilty and stood trial. Counsel likewise submitted that the sentence for attempted armed robbery was longer than that usually imposed for a completed armed robbery, even after a trial. Counsel submitted that the sentences were massively excessive, as was the order of cumulation in this case.
Mr Croucher submitted that the sentence on its face demonstrated that insufficient weight was given to the fact that the appellant had pleaded guilty at the earliest possible opportunity. Furthermore, he submitted that insufficient weight was given to statements of remorse made by the appellant in his record of interview, in his evidence and in a written note which he provided to the judge at the time of sentencing. Additionally, insufficient weight was given to the fact that the appellant had undertaken courses whilst in prison which advanced his prospects of rehabilitation.
The appellant is the father of twin 12 year-old children with whom he had lost contact for some years but at the time of sentencing on the present offences he had re-established contact with his children.
His Honour noted that having been released from prison in November 1995, having married whilst in prison, the appellant had moved to Rye where he started a business as a handyman and remained substantially out of trouble with the law for some five years. He was relatively drug-free apart from marijuana use in that period but he was not, as I have earlier noted, entirely free of offending behaviour during that period. Over that period of five years, however, there were no particularly serious offences and none for violence.
In the year 2000 he was imprisoned again for theft, as earlier mentioned. Although admitting that he was guilty of theft, he was embittered about his imprisonment because he had been accused of other offences but acquitted on those counts by the jury. He had been in custody from the time when the complaints were first made against him. As the judge below was told, the appellant considered that his theft was minor, involving theft from a person who was herself a thief.
He was released in April 2001 and had commenced again using drugs to a serious extent. The present offences occurred on 10 January 2002 at a time when he had a serious heroin habit.
Mrs Pullen, Counsel for the respondent, submitted that the pleas of guilty in this case could be given little weight given the strength of the case against the appellant, who was apprehended almost immediately after the offence. As to rehabilitation, Mrs Pullen submitted that his Honour had had regard to all of the relevant factors that were identified by counsel on the plea as bearing upon the prospects of rehabilitation. Mrs Pullen submitted that his Honour correctly identified the primary sentencing considerations which applied in this case as being both general and specific deterrence, denunciation, punishment and protection of the community.
Mrs Pullen submitted that as heavy as the sentences were, they were within range. The maximum sentence for attempted armed robbery was 20 years, of which eight years' imprisonment was imposed upon the appellant who had prior convictions for robbery and armed robbery. Of the maximum 15 year sentence available for recklessly causing serious injury he was sentenced to ten years' imprisonment and had a history of offences of violence, including an offence of recklessly causing serious injury for which he was sentenced in 1990 to three years six months' imprisonment and an offence of intentionally causing injury on which he was sentenced to 18 months' imprisonment at the same time. Those two sentences were component parts of the total effective sentence of ten years six months which was imposed with a non-parole period of eight years and six months in 1990.
Mrs Pullen submitted that the offences here were at the most serious end of the respective ranges having regard to the weapon which was used and the seriousness of the injury which was suffered by the victim. Having regard to the prior convictions and the sentences then imposed and their particular relevance to the offences on this occasion the appellant must inevitably have received a severe sentence on the present counts, counsel submitted.
As to the first two grounds of appeal, I am not persuaded that the learned sentencing judge erred in his treatment of the factors or the weight that he gave to the pleas of guilty or to remorse and the prospects of rehabilitation. In my view, the critical question in this case is whether the sentences imposed are manifestly excessive in all the circumstances.
These were exceptionally serious offences committed by a person with similar and relevant prior convictions who was drug-addled and armed with a dangerous weapon. Severe punishment was inevitable. There is nothing said by his Honour in his sentencing remarks with which I disagree, or which was inappropriate. His Honour's strong statements concerning the seriousness of the offences were entirely justified. Having said that, however, I am persuaded that the sentences and the order as to cumulation constitute this a manifestly excessive sentence. As has often been remarked, whether a sentence is manifestly excessive a matter of impression and does not admit of much argument.
His Honour made a number of references to the serious prior convictions which led to the ten and a half years sentence in 1990 and as important as that factor is, there is a danger that it can subtly provide a starting point for a sentence in the present case when, on close examination, it is clear that there are significant differences between the two events. The injury in this instance, serious as the events were, was clearly unplanned, unexpected and, as the jury found, unintended. The offender at the time of sentencing in this case was remorseful, and as the judge accepted, determined to renounce his drug lifestyle and to rehabilitate himself. His Honour recognised that the prospects of rehabilitation were uncertain, but he accepted the genuineness of the appellant's desire to achieve that result. Material before his Honour showed that the appellant had been taking opportunities to participate in training and rehabilitation courses through the prison, and further material which was supplied to us to be used in the event that we came to re-sentence the appellant showed that the appellant's efforts in those respects have continued to date.
In my view his Honour's sentence for the count of recklessly causing serious injury fails to give adequate recognition to the fact that the jury rejected the count of intentionally causing serious injury. Although Mrs Pullen has submitted that the jury could not be taken to have accepted the detail of the appellant's account, it seems to me they must be taken to have accepted his account of lashing out with the knife only after he was repeatedly struck from behind. The jury must have accepted that the appellant acted spontaneously in an attempt to stop the blows and in order to escape. That is, of course, no excuse whatsoever for the actions of the appellant but it must place the offence in a significantly less serious category than that of intentionally causing serious injury. The sentence, in my view, does not reflect that fact. Whilst it is of course appropriate to have said that this was an offence in the higher range for recklessly causing serious injury, the sentence imposed after pleas of guilty was, in my view, so high as to reflect error in all the circumstances.
As to the offence of attempted armed robbery, there is not so important a distinction for sentencing purposes, in my view, between an attempted armed robbery and armed robbery. This would have been armed robbery had there been any cash on the premises. At the same time, it is correct that the statutory maximum penalty and also the sentences generally imposed for attempted armed robbery will usually be less than for the completed offence of armed robbery, and once one
removes from the offence the actual use of the knife on Mr Hoyne, which is dealt with on the other count, this is a depressingly typical armed robbery attempt on a soft target by a drug addicted offender, with prior convictions, armed with a weapon. Those are serious offences deserving substantial imprisonment, but having regard to the plea of guilty, I am again persuaded that the sentence imposed on this offence is manifestly excessive.
Finally, I consider that while some order of cumulation was essential, too much was imposed and the degree of cumulation was also manifestly excessive.
In my opinion, the appeal against sentence should be allowed. Having regard to the pleas of guilty and to the jury's apparent acceptance of the account given by the appellant; to the fact of there being some remorse shown by the appellant from an early point after his apprehension; and to his prospects of rehabilitation, the appellant should, in my opinion, be re-sentenced as follows: On Count 1, attempted armed robbery, he should be sentenced to six years' imprisonment; on count 3, recklessly causing serious injury, he should be sentenced to eight years' imprisonment. I would order that three years of the sentence on count 1 be served cumulatively with the sentence on count 3, making a total effective sentence of 11 years' imprisonment. I would fix a non-parole period of eight years' imprisonment.
BATT, J.A.:
I will ask Chernov, J.A. to follow.
CHERNOV, J.A.:
I agree with Eames, J.A.
BATT, J.A.:
As the judge who gave leave to appeal stated, the applicant had an appalling record and the injuries which he inflicted with a weapon were severe. Nevertheless, in my opinion in all the circumstances stated by Eames, J.A., the direction for
cumulation of five years of the sentence on count 1 upon that on count 2 was manifestly excessive with the result that the whole sentence must be quashed and the applicant re-sentenced. I express no view on whether either of the individual sentences imposed was manifestly excessive.
I have treated grounds 1 and 2 as particulars of ground 3. I would not uphold them as individual grounds. I agree in the sentence proposed by Eames, J.A..
The Court makes the following orders:
1.The appeal against sentence is allowed.
2.The sentence imposed on the appellant in the County Court at Melbourne on 30 May 2003 is quashed.
3.In its place:
the appellant is sentenced to be imprisoned for a term of six years on count 1 and a term of eight years on count 3; the Court directs that three years of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 3, so that the total effective sentence is imprisonment for 11 years, and the Court fixes the period of eight years as the period during which the appellant is not eligible to be released on parole.
4.The orders for the taking of a forensic sample and for disposal and destruction are affirmed.
5.The Court declares that the period of 846 days, calculated to this day, 5 May 2004, is to be reckoned as already served under the sentence now passed and directs that the fact that the declaration was made and its details be noted in the records of the Court.
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