R v Chaffey

[1999] VSCA 12

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 201 of 1998

THE QUEEN

v

MARTIN JOHN CHAFFEY

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JUDGES:	PHILLIPS, C.J., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 1999
DATE OF JUDGMENT:	5 February 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 12

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Criminal law - Sentencing - Armed robbery - Youthful offender - Prospects of rehabilitation - Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs. C.M. Quin	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. D.J. Gurvich	Pro Bono

PHILLIPS, C.J.:  

1. I shall ask my brother Charles to give the first judgment in this matter.

CHARLES, J.A.:  

1. The applicant, who was born on 19 April 1977, pleaded guilty on 10 August 1998 in the County Court at Melbourne to one offence of armed robbery committed on 8 February 1998.  Presented with the applicant were two co-accused, Sophie Elizabeth Hughes and Nathan Francis Butler, who pleaded guilty to the same offence.  Hughes and Butler also pleaded guilty to a second offence of attempted armed robbery (count 2 on the presentment) committed two days later on Tuesday 10 February 1998.  The maximum penalty for armed robbery was 25 years' imprisonment.  During the plea, the applicant admitted seven prior convictions from three court appearances between 27 May 1992 and 6 June 1997, including causing serious injury intentionally and two offences of causing wilful damage.

1. On 18 August the learned judge sentenced the applicant to be imprisoned for 18 months, nine months of which was suspended for a period of 24 months.  Hughes was sentenced on the count of armed robbery to be detained in a youth training centre for 18 months, and on count 2 to be detained for a further period of six months, making a total effective sentence of two years' detention.  Butler was sentenced on the count of armed robbery to be imprisoned for 18 months and on count 2 for six months which was to be served cumulatively upon the sentence imposed on count 1.  Butler's total effective sentence was two years' imprisonment and a non-parole period of 12 months was fixed.

1. The applicant now seeks leave to appeal against sentence on the grounds that

(1)the sentence is manifestly excessive;

(2)the learned judge failed to give appropriate weight to his prospects of rehabilitation;

(3)the learned judge failed to give appropriate weight to the youthfulness of the applicant.

1. The circumstances giving rise to the offence were as follows.  On Sunday 8 February, shortly after 6 p.m., the applicant, Hughes and Butler went by car to a milk bar at 24 Milford Street, Kilsyth.  Hughes entered the milk bar, leaving Butler outside as a lookout.  She approached the counter of the shop and asked the milk bar owner, Julie Doidge, for some change for a telephone call.  Doidge handed Hughes 50 cents in five and ten cent pieces.  While the cash register was open, Hughes reached across and grabbed Doidge, at the time holding a knife in her right hand.  Hughes said, "Give me your money, I've got a friend outside who needs the money".  Maintaining her hold of Doidge, Hughes then reached across into the till and took cash amounting to $390.  She then hurriedly left the milk bar, and, with Butler, then entered the waiting car which had been parked a short distance away from the milk bar with the applicant at the wheel.  They drove away from the area, and the proceeds of the armed robbery were used to buy heroin at Springvale.  The knife and the car belonged to Hughes.  All three accused were addicted to heroin and the armed robbery was committed in each case to feed their heroin addiction.

1. The applicant was interviewed by police on 11 February 1998 and made full admissions as to his involvement in the robbery and his reasons for taking part in it.  The milk bar owner was not injured during the incident.

1. Mr Gurvich, who appeared in this Court on behalf of the applicant, submitted in relation to ground 3 that the applicant was only 20 at the time of the offence and that his youth should have been a primary consideration of the learned judge, the principle of rehabilitation being far more important than general deterrence where young offenders are concerned.

1. Mr Gurvich submitted that the applicant had learnt from his past criminality and that his progress of rehabilitation could be demonstrated by the two strong character references tendered during the plea, his commitment to address his drug dependency and the tenacity he had shown in staying away from heroin, and the fact that he had been guilty of no further criminality since this offence.

1. In support of ground 2 Mr Gurvich accepted that the learned judge had addressed the issues of remorse and rehabilitation but submitted that his Honour had placed too much weight on the prior convictions of the applicant, some of which were from the Children's Court several years before the offence.  But he had, however, successfully completed both his previous probation and his bond and his most serious prior offence, intentionally causing serious injury, had been committed when he was only 14.  His employment history was, Mr Gurvich submitted, impressive and taken with his character references and his commitment to resisting heroin should have led to a lesser sentence.

1. In relation to ground 1 it was submitted that the sentence was manifestly excessive in that the learned judge had insufficiently failed to take into account the background and history of the applicant.  Mr Gurvich submitted that the sentence was outside the limits of a sound discretionary judgment having regard to the applicant's early plea of guilty, his full and frank admissions in the record of interview, his remorse, his lesser role in the offence, his good prospects of rehabilitation, his good employment history and the fact that this was an isolated offence in contrast with the criminal activities of his co-offenders.

1. Mrs Quin, who appeared in this Court on behalf of the Crown, argued under ground 2 that the learned judge expressly took into account the applicant's remorse and prospects of rehabilitation, saying in relation to the applicant's prior convictions that the circumstances of his Children's Court conviction were not as serious as the description of the offence, of itself, might indicate and of the others that they were relatively insignificant when compared with the serious nature of the crime of armed robbery.  His Honour had also noted that the applicant had spent one month in custody which had done him some good since he had given up heroin and had not used it at all since his release.

1. There is, I think, nothing in the reasons to suggest that his Honour placed too much weight on the applicant's prior convictions.  His Honour plainly gave emphasis to the applicant's prospects of rehabilitation.  This ground must fail.

1. In relation to grounds 1 and 3, the learned judge gave careful consideration to the applicant's age and youth.  It is, of course, undoubtedly true that the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime rather than being taught the ways of the criminal after a gaol sentence.  (See, e.g. Attorney-General v Chmil and Zanoni, unreported, Court of Criminal Appeal, 1 August 1977).  His Honour accepted that the present offence was at the lower end of the scale and no complaint, in my view, could have been made if his Honour had suspended the whole of the sentence of imprisonment imposed on the applicant.

1. But the applicant did not fall into the category of a youth appearing in court for the first time with no previous criminal history.  Three prior court appearances had resulted in convictions for not insignificant offences.  Furthermore, after an appeal to the County Court, the applicant had spent one month in gaol commencing on 20 April 1998 for an offence connected with drink-driving.  Although it was submitted on the applicant's behalf that he took a lesser role in the commission of the offence than the co-offenders, the learned judge did not accept this, saying that it was he who had selected the milk bar as the object of the robbery because it was "quiet".  The fact that the applicant acted as driver and stayed in the car is doubtless to be explained by the fact that he had lived in the area and was familiar with the milk bar, which he admitted having visited on a number of occasions.  The learned judge accepted that the applicant was now remorseful and that he was prepared to make every effort to continue his rehabilitation.  Indeed, the applicant is to be congratulated upon his success thus far in fighting his former drug addiction.  His Honour, however, decided that it was necessary to impose a custodial sentence because, as he put it -

"Young people like you and your two co‑offenders must  be made aware of the fact that once experimenting with hard drugs like heroin begins a grave risk is  run that addiction will follow, with all the tragic consequences which are likely to follow, including  the commission of serious crime in order to feed the addiction.  It must be clearly understood by the  community that when convicted of serious crimes such as this a period of incarceration will almost  certainly follow".

1. The learned judge was, with respect, plainly correct in giving emphasis both to general and specific deterrence for this offence of armed robbery.  Mrs Quin submitted, and I agree, that the need for condign punishment and deterrence is frequently emphasized when the offence is prevalent and tends to be committed by young offenders.

1. In my view ground 3 is not made out.

1. Insofar as ground 1 is concerned, I do not think it can be said that the sentence was in all the circumstances beyond range.

1. Notwithstanding Mr Gurvich's well-thought-out and powerful submissions, in my view the application should be dismissed.

PHILLIPS, C.J.:  

1. I agree with the conclusion of Charles, J.A. and I would subscribe to his Honour's reasons therefore.

BUCHANAN, J.A.:  

1. I agree.

PHILLIPS, C.J.:  

1. The order of the Court is that the application for leave to appeal against sentence stands dismissed.