R v Carmichael
[2008] VSCA 10
•31 January 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 178 of 2007
| THE QUEEN |
| v |
| SCOTT JOHN CARMICHAEL |
---
JUDGES: | BUCHANAN, NETTLE and KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 January 2008 | |
DATE OF JUDGMENT: | 31 January 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 10 | |
---
Criminal Law – Sentencing – Armed robberies in company – Use of disguises – Offender 22 years at time of offences – Whether sentencing judge gave sufficient regard to youth, plea of guilty and drug addiction – Six years’ imprisonment with a non-parole period of three years not manifestly excessive – Application refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Dr S McNicol | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr D A Dann | C McLennan & Co |
BUCHANAN JA:
I will ask Kellam JA to deliver the first judgment.
KELLAM JA:
On 28 May 2007 the applicant pleaded guilty before the County Court at Melbourne to three counts of armed robbery, one count of theft and one count of possession of a drug of dependence. He was sentenced to the following terms of imprisonment:
·Count 2 - armed robbery - three years’ imprisonment.
·Count 4 - armed robbery - three years’ imprisonment.
·Count 6 - armed robbery - three years’ imprisonment.
·Count 8 - theft - six months’ imprisonment.
·Count 11 - possession of a drug of dependence - one month’s imprisonment.
The sentencing judge ordered that 18 months of the sentence imposed on count 4 and 18 months of the sentence imposed on count 6 be served cumulatively upon each other and upon the sentence imposed on count 2. This amounted to a total effective sentence of six years’ imprisonment. Her Honour directed that the applicant serve a minimum of three years’ imprisonment before becoming eligible for parole.
The facts
Count 2 – armed robbery
On 25 September 2006 the applicant, in company with another person, went to a milk bar owned by a Mr Wu. Both the applicant and his accomplice were disguised by having their faces covered. The applicant was armed with a baseball bat. His accomplice was armed with a knife. Upon entering the milk bar the
applicant’s accomplice demanded money from the wife of Mr Wu. He held his knife towards her. The applicant’s accomplice went behind the counter to the cash register and tried to open it but was unable to do so. Accordingly, he took the register and together with the applicant ran out of the shop. In addition he took two tins of coins with him. The applicant and his accomplice escaped in a motor car driven by a third person. The money stolen totalled approximately $500.
Count 4 – armed robbery
Count 4 related to events which took place on 23 October 2006. At approximately 1.15 am that day the applicant, together with two accomplices, entered a Caltex service station in Keysborough. All three men disguised their appearances by wrapping cloth around their faces. The applicant was armed with a small samurai sword and his two accomplices were each armed with knives. The service station attendant was behind the counter. He was approached by one of the applicant’s accomplices and told to hand over money. The attendant placed the till on the counter. The applicant entered the attendant’s console area and took six packets of cigarettes, with which all three men departed in a motor car. The money stolen from the till totalled approximately $300 and the cigarettes were valued at approximately $70.
Count 6 – armed robbery
Count 6 referred to events which took place on 23 October 2006. On that date, at approximately 6 pm the applicant, in company with his co-accused Aytec Ozbec and another man, drove to a milk bar in Mulgrave in Ozbec’s Toyota motor car. The car had stolen number plates affixed to it in order to disguise it. Ozbec entered the milk bar, in order to see how many people were there. He then returned to the vehicle. The applicant and the third man then entered the milk bar wearing disguises. The applicant was armed with an iron bar and his accomplice was armed with a knife in the shape of a samurai sword. The female attendant gave the applicant’s co-accused all the money from the cash register after he pointed the knife at her and made demands for the money. The applicant entered the rear of the milk bar and stole a laptop computer and an iPod from a desk. He and his accomplice then left the milk bar and were driven away by Ozbec who was waiting in his car. The money stolen amounted to approximately $250. The laptop computer and the iPod were sold for $380 and the applicant and another co-accused shared the proceeds to buy heroin.
Count 8 – theft
On Wednesday 25 October 2006 the applicant, together with his co-accused Ozbec, attended at the Myer store in Eastland and stole clothing valued at $848.
Count 11 – possession of a drug of dependence
At approximately 5 pm on 25 October 2006 the applicant and his co-accused Ozbec purchased heroin from an unknown male in Springvale. Both men then went to a park in Noble Park where they used the heroin.
The applicant was arrested by police on 26 October 2006. He denied having been involved in the commission of the offences.
The applicant seeks leave to appeal the sentence imposed upon him on four grounds. Grounds 1 to 3 are that the sentencing judge was in error in that she failed to;
·have sufficient regard to the applicant’s youth,
·have sufficient regard to the applicant’s plea of guilty,
·recognize the applicant’s drug addiction as a mitigating factor.
Effectively, grounds 1 to 3 are particulars of ground 4 which is that, in all the circumstances, the sentence imposed was manifestly excessive.
The personal background of the applicant
The applicant was aged 22 at the time of the commission of the offences and was aged 22 years and eight months at the time of sentencing. Apart from some Children’s Court offences he had been convicted at the Dandenong Magistrates’ Court on 12 August 2005 of burglary, theft and going equipped to steal. In respect of those matters he was sentenced to an aggregate sentence of three months’ imprisonment, which sentence was wholly suspended for a period of 12 months. Subsequently at the Magistrates’ Court at Dandenong on 1 August 2006 the applicant was convicted of three counts of obtaining property by deception, three counts of theft, handling stolen goods, and motor car offences. He was sentenced to be released upon a Community Based Order for a period of 12 months with a special condition that he undergo assessment and treatment for alcohol/drug addiction.
Significantly the commission of those offences was in breach of the suspended sentence which had been imposed upon him on 12 August 2005. On 1 August 2006 the suspended sentence which had been imposed on 12 August 2005 was extended by a further six months by reasons of such breach. The offences with which we are concerned took place during the course of that suspended sentence and within three months after the applicant was dealt with at the Magistrates’ Court at Dandenong on 1 August 2006.
The sentencing judge accepted that the applicant had had a difficult and dysfunctional childhood. His parents had separated acrimoniously when he was almost one year old. His mother suffered from bi-polar disorder and had struggled to bring up the applicant and three other children. His mother suffered serious bouts of depression and had attempted suicide on a number of occasions, with the consequence that the applicant was placed in respite care from time to time. The sentencing judge accepted that the applicant had commenced to use alcohol and cannabis at the age of 12 and that he had left home at the age of 14 after a dispute with his mother and that he had gone to live with a group of older boys who had introduced him to the use of heroin. The applicant was exposed to a drug sub-culture throughout his teenage years and left school at the age of 16. The sentencing judge accepted that the applicant was a heavy user of drugs at the time of the commission of the offences.
A psychological report prepared by psychologist Mr Bernard Healey was before her Honour. Intellectual testing of the applicant by Mr Healey revealed that he had a full scale IQ of 91.
The submissions of the applicant
It is submitted on behalf of the applicant that the applicant’s youth, together with his limited prior convictions and prospects of rehabilitation were insufficiently considered by her Honour. It is argued that the head sentence imposed by her Honour demonstrates that to be so. Furthermore, it is submitted that her Honour was in error in that she failed to have sufficient regard to the applicant’s pleas of guilty. In particular it is submitted before us, although it was not so submitted before her Honour, that in circumstances whereby there appeared to be little admissible evidence against the applicant, his pleas of guilty warranted additional recognition. Furthermore, it is submitted that the sentencing judge failed to recognise the applicant’s drug addiction as being a matter to be taken into account in mitigation of his sentence. Finally, it is submitted that the sentence imposed was manifestly excessive taking into account each of these three alleged errors and the consideration that the applicant had no prior convictions for violence, and that all offences were committed within a short timeframe, and in addition that he had good or at least reasonable prospects of rehabilitation.
Conclusion
In my view there is no basis to say that the sentencing judge committed the errors asserted under grounds 1, 2 and 3 of the application for leave to appeal. As to ground 1 it is clear that her Honour was conscious of the youth of the applicant. She set out in some considerable detail the difficult and dysfunctional background of the applicant. She noted specifically that the applicant was ‘still a young man for whom rehabilitation is a most important consideration’.
The sentencing reasons contain reference to the fact that the applicant had not previously been placed in custody. Her Honour referred explicitly to the youth of the applicant and the importance of his rehabilitation and she stated that by reason thereof she intended to direct a longer parole period than might otherwise have been the case. It cannot be said that she had insufficient regard to the youth of the applicant. Indeed, taking into account the nature and the gravity of the offending, the sentences imposed demonstrate that she did have regard to the youth of the applicant.
Furthermore and as to ground 2, her Honour stated specifically that she was reducing the sentence which she would otherwise have imposed by reason of the applicant’s plea of guilty. She referred to the fact that although the applicant had reserved his plea at the committal mention, negotiations were taking place between the applicant and the prosecution at that time. She noted the fact that a contested committal hearing was not held.
However, it is argued before us that her Honour should have allowed additional weight to the applicant’s plea of guilty by reason of the fact, so it is submitted, that there was ‘little admissible evidence against him’. It is to be observed that this argument was not a submission which was made to her Honour by counsel who appeared for the applicant on the plea. Furthermore, the respondent argues that the conclusion that there was little admissible evidence is not open. With respect to count 2, a count of armed robbery, the driver of the ‘getaway car’ had made a sworn statement to police whereby she implicated the applicant as being involved. Her name was listed as a witness on the Presentment back sheet.
As to the armed robbery the subject of count 4 the applicant, when arrested, was wearing a distinctive jacket which appeared to be the same as that worn by one of the offenders. Furthermore, at the address at which the applicant was arrested there were found weapons which had been used in the armed robbery as well as a vehicle which matched the description supplied to witnesses to the armed robbery. Whilst the applicant submits that such evidence was weak, and there might be some weight in that submission, nevertheless it cannot be said that without the plea of guilty the prosecution had no evidence of consequence. Notwithstanding, it is apparent that the plea of guilty by the applicant was a matter of considerable weight in the applicant’s favour.
That said however, in my view, there is no basis for concluding that her Honour failed to give full weight to the plea of guilty made by the applicant. The sentences imposed on each armed robbery were less than one eighth of the maximum sentence for each such offence. The armed robberies were serious, committed as they were in company and involving the use of disguises and frightening weapons. The robberies were committed upon soft targets. The applicant carried a baseball bat, a small samurai sword and an iron bar respectively in each of the three armed robberies. He was in company with other offenders who carried knives. In my view it cannot be said that the sentences imposed do not adequately reflect the plea of guilty.
I turn to ground 3, the assertion that the sentencing judge failed to recognise that the applicant’s drug addiction was a mitigating factor. In my view there is nothing in this ground. The plea before her Honour made full reference to the applicant’s drug use at the time of the offending and of the applicant’s need to fund his addiction. In her sentencing remarks the judge made specific reference to the use of drugs by the applicant, and the escalation in his drug use leading up to the offending. She observed that the applicant was under the influence of heroin at the time of his arrest. In my view, upon a full reading of the plea and sentence it is clear that her Honour accepted that the applicant committed the subject offences out of desperation to buy drugs and, furthermore that there was a link between his drug use and his offending, and that she took that matter into account in imposing sentence.
In my view the submission that the individual sentences imposed and partial
cumulation thereof resulted in a sentence which was manifestly excessive must be rejected. The three armed robberies in which the applicant participated were serious examples of a serious offence. Each victim was working alone and in vulnerable circumstances. As stated above, the offences were committed in company by disguised offenders, each of whom was armed with weapons capable of causing real, and potentially fatal, harm. There was a degree of planning and pre-meditation on each occasion. The robberies cannot be described as ‘spur of the moment’ offences. This Court has stated time after time that the prevalence of armed robberies of ‘soft targets’ calls for the exercise of the sentencing objectives of general deterrence and denunciation. In my view the individual sentences, and the partial cumulation thereof cannot, in all the circumstances, including the mitigatory factors before the sentencing judge, be said to be manifestly excessive.
I would refuse the application for leave to appeal.
BUCHANAN JA:
I agree.
NETTLE JA:
I also agree.
BUCHANAN JA:
The order of the Court is that leave to appeal against sentence is refused.
---
0
0