R v Denehy
[2000] VSCA 41
•21 March 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 36 of 1999
THE QUEEN v. ROBERT RAYMOND DENNEHY ---
JUDGES:
CHARLES and CALLAWAY, JJ.A. and COLDREY, A.J.A.
WHERE HELD:
MELBOURNE
DATE OF HEARING:
21 March 2000
DATE OF JUDGMENT:
21 March 2000
MEDIUM NEUTRAL CITATION:
[2000] VSCA 41
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Criminal law - Sentencing - Five armed robberies committed on two occasions - Appellant suffering from paranoid schizophrenia - Adjusted total effective sentence of eight years' imprisonment with non-parole period of five-and-a-half years not manifestly excessive.
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APPEARANCES:
Counsel Solicitors For the Crown
Mr G. Horgan P.C. Wood, Solicitor for Public Prosecutions
For the Appellant Mr M.C. Kowalski David Tonkin & Assoc. CHARLES, J.A.:
1 I shall invite Callaway, J.A. to deliver the first judgment.
CALLAWAY, J.A.:
2 The appellant, who is now aged 27, pleaded guilty in the County Court to five counts of armed robbery. Counts 2 and 3 related to offences committed at Safety Beach on 5 January 1998 and counts 7, 8 and 9 related to offences committed at Aspendale the next day. All the offences were committed in company with a co-offender, one Matthew Charles Johnson. Both men have criminal histories to which I shall refer again later. After hearing a plea for leniency on their behalf, the learned judge sentenced the appellant to a total effective sentence of seven-and-a-half years' imprisonment with a non-parole period of five years.[1] His Honour sentenced Johnson to a total effective sentence of six years' imprisonment with a non-parole period of four years. In Johnson's case a declaration was made regarding pre-sentence detention.
[1]But see [4-5] below.
3 On 6th December 1999 the appellant was granted leave to appeal against sentence.
4 Before turning to the grounds of appeal, the background facts and counsel's submissions, it is necessary to say something more of the way in which the total effective sentence imposed on the appellant was constructed. His Honour sentenced the appellant to five-and-a-half years' imprisonment on each count and directed that two years of the sentence imposed on count 7 be served cumulatively upon the sentence imposed on count 2. The appellant was already serving a sentence imposed in the County Court on 9 December 1994. At the time of sentence he had almost completed serving it. It did not count as pre-sentence detention but, to achieve the equivalent of a measure of concurrency, his Honour reduced the sentences that he would otherwise have imposed by six months and directed concurrency with the
balance of the earlier sentence. He explained that the sentences on each count would otherwise have been six years' imprisonment with a total effective sentence of eight years' imprisonment and a non-parole period of five-and-a-half years.
5 Although no criticism is made of the structure of the sentence, it is important to bear those adjustments in mind in considering the grounds of appeal, which I shall paraphrase as follows:
1.That the sentence imposed is manifestly excessive;
2.That the learned judge erred in failing to accord sufficient weight to the following mitigating circumstances personal to the appellant, namely, his mental illness (paranoid schizophrenia), the additional burden a term of incarceration would have on him due to his mental illness, his prospects of rehabilitation and his inappropriateness as a vehicle for general and specific deterrence;
3.That his Honour erred in giving too much weight to what was said to be the continuing danger to the community posed by the appellant;
4.That his Honour erred in imposing a sentence that was inappropriate having regard to the principle of parity in sentencing co-offenders.
6 The offences may be briefly described. The appellant, Johnson and one Ben Gardner decided to steal drugs and money from a person or persons at home at gunpoint. Gardner, who was recruited by the others, was to be the driver and the robberies were to be committed at night. As it happened, the appellant and Johnson were the focus of covert surveillance, which enabled the police to observe their preparations. They were seen loading items, including a sports bag, into the appellant's vehicle. The sports bag was later recovered and found to contain thick ducting tape, a knife and a sawn-off double-barrelled shotgun with eight cartridges.
7 By error the offenders selected the home of an elderly couple, Mr and Mrs Wade, who had nothing whatever to do with drugs. Gardner drove the appellant and Johnson to Mr and Mrs Wade's home, where they effected an entry and confronted the occupants. The appellant was armed with an imitation pistol and Johnson with a knife.
8 At least on this occasion the appellant was the more aggressive of the two. At one stage he said to Mr Wade, "If you look at my face and identify me, I'll put one into your leg", threatening him with the pistol. He also ripped the telephone out of the wall and, on a number of occasions, told Mr and Mrs Wade he would shoot them if they looked at him. He did, however, say to Mrs Wade, "We're not going to hurt you, ma'am." He asked for her handbag. She took from it $350 in cash and gave it to him. Mr Wade said, "We have just moved down here from New South Wales and retired", to which the appellant replied, "Well, didn't you get a lump sum?" Mr Wade said, "You must be joking."
9 The appellant then asked if they had any jewellery. Johnson accompanied Mr Wade to a bedroom and examined jewellery which he declared to be trash. He then demanded money. Mr Wade gave him his wallet, from which he took $70. Both men looked around for anything else they could steal and then left.
10 At about midnight the appellant, Johnson and Gardner drove to an address at Aspendale. Gardner remained there. The appellant and Johnson left on foot and went to a nearby house, where they bailed up one Mark Rapp and one Peter Morton in the driveway. (It was approximately 1 a.m. but they had heard noises and gone outside to investigate.) The appellant pushed the imitation pistol into Mr Rapp's neck and chin and demanded that he take them inside. Johnson was again armed with a knife. Mr Morton struggled and ran off, but Johnson chased him and brought him back to the house. The appellant threatened to shoot Mr Rapp in the knees and then struck him on the chin with the pistol.
11 Both were taken into the house and the offenders demanded to know who else was there. They were told that Mr Rapp's girlfriend and his sister were in the house. They asked, "Where are the drugs?" and were shown a small quantity of marijuana. When Mr Morton made a successful attempt to get away, the appellant reacted by pushing the barrel of the pistol into Mr Rapp's mouth and demanded that he bring Mr Morton back.
12 Johnson burst into the bedroom of another occupant of the house, one Paul Ridler, grabbed him in a headlock and held a knife to his throat. He took him into the loungeroom, demanding to know where the money was. He told Mr Ridler that, if he looked at him, he would poke his eyes out. Mr Rapp's sister was woken from sleep and heard shouting. She walked out to see the appellant yelling at Mr Ridler. She also noticed Johnson in the loungeroom and claimed that he was holding a knife in each hand. Johnson also went into the bedroom where Mr Rapp's girlfriend was sleeping. He told her to get up. When she went into the loungeroom she saw Mr Rapp, his sister and Mr Ridler lined up against the wall. The appellant was yelling at Mr Rapp and waving the imitation pistol.
13 Mr Ridler was able to escape a short time later, but the appellant continued to menace Mr Rapp, repeating the threat to shoot him in the knees. Johnson said that he would kill Mr Morton when he found him and threatened to start cutting the occupants of the house unless they told him where the money was. The appellant and Johnson searched the house and stole a number of items, including a watch, handbags, a mobile telephone, wallets, some money, a radio and a camera.
14 In the meantime Mr Morton had summoned the police. The appellant was arrested in the street almost immediately and Johnson shortly thereafter.
15 The gravity of the offences is self-evident. So, too, is the effect that the offences had on the victims. Mr and Mrs Wade had only just bought their house at Safety Beach. They were so distressed and put in fear by the robberies that they decided to sell it. They continue to live in fear. The victims of the robberies at Aspendale were also traumatised.
16 Mr Kowalski argued ground 4 first, contending that the sentences imposed on the appellant and Johnson were manifestly disparate and, further, that no greater sentence should have been imposed on the appellant than on Johnson.
17 Counsel undertook a comparison of the circumstances of the offences before turning to those of the offenders. He conceded that it was open to the judge to consider the appellant's participation in the robberies at Safety Beach as slightly more culpable than Johnson's, but submitted that Johnson's role was at least as substantial, if not greater, when one turned to the offences at Aspendale. He submitted that such difference as there was adverse to his client should have had, at most, a slight effect on the sentence.
18 Turning to the circumstances of the offenders, counsel emphasized that the appellant's poor prospects of rehabilitation were a product of his mental illness. He was not an appropriate vehicle for either general or, counsel submitted, specific deterrence. By contrast, both those objectives applied to Johnson's sentence. True it was that the appellant's schizophrenia was a two edged sword, relating as it also did to the protection of the community as another factor in the sentencing disposition.
19 It had to be acknowledged that the two men had different criminal histories but, counsel said, it was possible to exaggerate the differences. Johnson was not of good character and had served two significant terms of imprisonment. The appellant had admitted 81 previous convictions (using that expression loosely to include occasions when the charge was found proven and the matter adjourned) from 13 court appearances between 1988 and 1994, including numerous offences of violence. The instant offences were committed whilst he was on parole. Johnson had admitted 14 previous convictions from four court appearances between 1992 and 1994, including some offences of violence. His Honour correctly regarded Johnson's criminal history as less extensive and, because he had kept out of trouble for more than two years after his release on parole in mid-1995, considered that he had better prospects of rehabilitation.
20 Careful consideration was given to parity, as is illustrated by the following remarks addressed to Johnson:
"In your case, considerations of both personal and general deterrence are pertinent. Having regard to your previous imprisonment and to the gravity of these crimes a significant custodial sentence is inevitable, but it ought to be a lesser sentence than the sentence imposed on Dennehy notwithstanding his mental illness because your criminal history is less extensive and your role was slightly less heinous. You have better prospects of rehabilitation and you represent less of a danger to the community."
21 In arguing ground 3 Mr Kowalski submitted that too much weight had been given to the protection of the community and not enough to mitigatory factors but it is, I think, impossible to disentangle ground 3 from the other remaining grounds. Ground 2 was sensibly argued as containing particulars of ground 1. There was a mixture of factors, some pointing in opposite directions, and it is the way in which his Honour handled that mixture and the weight that he accorded to those factors that ultimately determines whether appellate intervention is warranted.
22 It was conceded that the judge took into account all the relevant factors in mitigation. I shall mention those that counsel particularly stressed. It was said that the appellant's mental illness obscured his intention to commit the offences and significantly reduced his overall moral culpability. It may be accepted that mental illness of the severity of that which the appellant suffers did diminish his moral culpability but it did not eliminate it. There was no direct and immediate link between the illness and the offence, as there sometimes is. These were premeditated armed robberies committed for gain.
23 Another factor that counsel mentioned was that the appellant's schizophrenia would greatly add to the burden of incarceration. That was a matter that the judge expressly mentioned in the course of his sentencing remarks, not in passing but in the context of explaining why a substantial custodial sentence was inevitable.
24 On instructions, counsel referred to setbacks that the appellant has encountered, both before and after sentence, in the prison environment. His Honour did not lose sight of the former. I do not think we are entitled to take the latter into account and, if we did, I doubt that it would work to the appellant's advantage, having regard to the relationship between his illness and his prospects of rehabilitation.
25 A positive factor working towards the appellant's rehabilitation is his relationship with a young woman called Michelle Day. They have a daughter who, at the time of sentence, was some six months old. Ms Day, who has no criminal history, gave evidence at the plea both of the stability of that relationship and of the appellant's affection for his child. Had his Honour not taken that into account in considering the appellant's prospects, I think there would have been sentencing error, but it is apparent that it was taken into account, together with the evidence that the appellant's medical condition had improved and his paranoia was reduced. That evidence came from Ms Day and also from Dr Bell, a psychiatrist whose report was before his Honour and who testified at the plea.
26 Reference was also made to specific deterrence but, as I read the sentencing remarks, that was not a major factor in the sentencing disposition. Except for a passing reference to one of the authorities, nothing was said of it on the plea and there is no reference to it, in relation to the appellant, in what his Honour said. The contrast with the words he addressed to Johnson, which I have earlier read, is immediately apparent.
27 Notwithstanding counsel's submissions and the sympathy that one feels with a man who is seriously ill, I can detect no error in the sentence or in the judge's careful sentencing remarks. His Honour correctly directed himself regarding the appellant's plea of guilty and expressly said that he had reduced the sentence on that account. Because of the appellant's severe mental illness, he did not regard him as an appropriate vehicle for general deterrence and acknowledged that that illness also diminished his moral culpability.
28 There was, nevertheless, as his Honour observed, evidence that the appellant was substantially in control of his faculties at the time he committed the offences and his psychiatric condition remained relevant in considering both his prospects of rehabilitation and the need to protect the community. His Honour continued:
"I am convinced, sadly, that you will continue to represent a danger to the community, perhaps indefinitely. Having regard to your long and serious criminal history, the fact that you [were] on parole, the gravity of these crimes, the poor prospects of rehabilitation and the need to protect the community, a substantial custodial sentence is inevitable."
29 In my view the judge was right in the circumstances of this case to give the emphasis he did to the last factor mentioned in that passage, namely, the need to protect the community: cf. Veen v. R. [No. 2][2]. This is not a case where a disproportionate sentence has been imposed on a man by reason of his mental illness.
[2](1988) 164 CLR 465 at 476-477.
30 For these reasons I would dismiss the appeal.
CHARLES, J.A.:
31 I agree.
COLDREY, A.J.A.:
32 I also agree.
CHARLES, J.A.:
33 The order of the Court is:
Appeal dismissed.
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