R v Diss
[2002] VSCA 14
•14 February 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 61 of 2001
| THE QUEEN |
| v. |
| BENJAMIN PETER DISS |
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JUDGES: | WINNEKE, P., BROOKING and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 February 2002 | |
DATE OF JUDGMENT: | 14 February 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 14 | |
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CRIMINAL LAW - Sentencing - Armed robbery - Youthful offender - Principles applicable to youthful offender - Rehabilitation - Parity - Sentence not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr C.B. Boyce | Kenna Croxford |
WINNEKE, P.:
I will invite Charles, J.A. to give the first judgment in this application.
CHARLES, J.A.:
The applicant, Benjamin Peter Diss, who was born on 28 January 1981, and is now aged 21, pleaded guilty on 8 March 2001 to a presentment alleging one count of armed robbery (count 1) and two counts of possessing a drug of dependence (counts 2 and 3) in the County Court at Bendigo, A co-offender, Brett Ronald Bennett, now aged 26, also pleaded guilty to the same count of armed robbery.
The applicant admitted seven prior convictions from two court appearances before the Magistrates' Court at Bendigo in 1998 and 1999. Bennett admitted 16 prior convictions from eight court appearances before Magistrates' Courts between 1992 and 1999. During the plea a victim impact statement was filed. Counsel for the applicant relied on a report by a psychologist, Mr Bob Ives. Counsel for Bennett tendered a letter from Mr Marshall of the Bendigo Health Care Group and evidence was given on his behalf by his mother.
On 14 March the applicant was sentenced on count 1 to 3 years and 6 months' imprisonment, on count 2 to a fine of $500, and on count 3 to imprisonment for 3 months, made wholly concurrent with the sentence imposed on count 1. Bennett was sentenced to a 12-month intensive correction order. The maximum penalty for armed robbery was 25 years' imprisonment.
The applicant now seeks leave to appeal on grounds, first, that the sentence was manifestly excessive, secondly, that the sentence imposed upon the applicant when compared with the sentence imposed upon the co-offender reveals manifest disparity, and, thirdly, that the judge erred by failing to place sufficient weight upon the applicant's youth.
The circumstances of the offences were as follows. On Saturday, 7 October 2000 at about 9 p.m., the applicant, armed with a pair of pliers which he held in a manner designed to appear to be a firearm, entered a pharmacy in Bridge Street, Bendigo and approached the pharmacist, Matthew Webb. Mr Webb, as intended, took the applicant to be holding a "barrelled object" which he thought was a shotgun or rifle. The applicant demanded money, saying, "Only give me the notes". The day's takings then in the cash register amounted to approximately $1,100, which Mr Webb took out and handed, under threat, to the applicant, who also took 40 bottles of a prescription drug, Temazepam. The bottles were placed in a red tartan shirt, tied so that it could be used as a carry bag. The applicant then left the pharmacy, telling Mr Webb not to call the police. The victim immediately secured the shop and called the police. Although Mr Webb was unharmed in the incident his victim impact statement makes clear that he was very frightened by what had happened and since the incident his anxiety levels have been high and his tolerance of frustration has decreased.
The two accused were arrested four days later on 11 October. In his record of interview with the police, Bennett admitted driving the applicant to the scene, waiting for him whilst the armed robbery took place and providing the means of escape. He knew that the applicant had the pliers and would use them, partly hidden by an apron, in such a way as to suggest he was holding a firearm. The applicant in his record of interview admitted that he was familiar with the pharmacy, having been there previously and having noticed that bottles of Temazepam were easily accessible. The applicant kept for himself the stolen cash and the majority of the drugs that were taken away. He said that he swapped the Temazepam for heroin and that he spent the money on heroin and in payment of debts including drug debts.
Counts 2 and 3 arose from the fact that when the applicant was arrested police officers found 11 grams of cannabis L under the mattress on which he had been sleeping. On the same day the applicant was taken to the Bendigo Magistrates' Court, and while the security police officer was waiting for a warrant, made an abortive attempt to flee. When taken back to the police cells, the applicant was searched and one gram of heroin and some Temazepam tablets were found on his person.
Before turning to what was put on the plea and on the applicant's behalf in this Court, it is necessary to say something further about the prior convictions of both accused. The 16 convictions admitted by Bennett included offences such as intentionally damaging property, intentionally causing injury, assault in company and by kicking, wilful damage and being found in possession of a regulated weapon. With the exception of the offences of which Bennett was convicted on 18 October 1993 and for which he was sentenced to six months' detention in a youth training centre, the remaining offences were, having regard to the penalties imposed, comparatively minor and the judge said of them that although some of his convictions were relevant to the sentence to be imposed, his prior convictions, although more numerous, were less serious and less relevant than those of the present applicant. The applicant had been convicted on 22 December 1998 of three counts of trafficking in heroin, on which he had been sentenced to 90 days' imprisonment in each case (to be served concurrently), and on 28 September 1999, on one count of burglary and two charges of theft. On the first occasion, 43 days of the sentence had been suspended for 18 months but, by virtue of his further offending and conviction on 28 September 1999, the suspension was cancelled and he was ordered to serve out the period of imprisonment. On 28 September 1999 the applicant was sentenced to three months' imprisonment on the charge of burglary and one charge of theft, and placed on a community-based order for 12 months, for breach of which he was brought before the Bendigo Magistrates' Court on 2 October 2000. On that day the applicant entered into a recognisance to be of good behaviour until 1 October 2001, and the present offences were committed in breach of this recognisance, indeed less than a week after he entered into it.
During the plea the applicant's counsel conceded that he was the principal offender. It was put that he was drug-addicted and that the armed robbery had been committed out of a need to feed his drug habit. At the time of the commission of these offences the applicant had not been living at home since he did not wish his parents to see him in his then state, being dysfunctional and very weak. Nonetheless his parents still supported him and were prepared to receive him back upon his release. The judge was told that the applicant during his incarceration had participated in two drug education programs and had also conducted an occupational health and safety program successfully.
The report of Mr Bob Ives dated 3 March 2001 which was before the judge included comments that at the time of the offence and in the lead-up to it he was in an acute state of personal crisis and was exhibiting a high level of irrational behaviour. Since childhood he had exhibited a number of behavioural difficulties sufficiently severe to be of psychiatric origin, which appeared to have been further intensified by his drug use. Mr Ives considered that the applicant had not really the physique to cope with his job in a brick factory, although he did persevere at it despite considerable personal difficulties, which suggested to Mr Ives that if he was able to rid himself of his drug habit he could hold down a job. Mr Ives considered that having spent some months in remand, the applicant then felt less overwhelmed and mentally disorganised by his problems than he had the previous year while in a state of personal crisis, and appeared to be able to participate more meaningfully in some forms of treatment. The concluding paragraph of Mr Ives's report was in the following form -
"However, while Mr Diss, following a long period on remand, now appears to be actively exploring avenues of long term drug rehabilitation, including the Salvation Army's Bridge Project, he still appears to have long term behavioural and psychological problems which need addressing, and which are likely to impact on his vulnerability for future drug abuse, and any rehabilitation program should include a component of psychiatric assessment and, if needs be, treatment."
At the time of sentence, the applicant was said to have been "clean" for five months. Reliance was placed on the fact that his prior criminal history had not included any offence of a violent nature. He had pleaded guilty and made full admissions to the police, but counsel accepted that a term of imprisonment was the only sentencing option available. It was submitted that a lengthy period of parole or a suspended sentence should be considered. The judge said in relation to the applicant that he was obliged to take into account his relatively young age and continued -
"I sentence you, Diss, as very much the principal offender. The commission of the robbery was your idea, you planned it, you were the main player in carrying it out. It would appear that you, Bennett, were to a very considerable extent the lesser player in this affair and were not the principal offender. You were recruited by Diss to facilitate his plan and with the prospect of being supplied with some drugs that were to be stolen you agreed. Your part of the plan was to drive to the scene and wait and facilitate the getaway. You received none of the stolen money, indeed you did not even know that money had been stolen and you received only a small share of the stolen drugs. The considerable difference in relative culpability of you both must be reflected in the sentence I pass."
In this Court, Mr Boyce submitted for the applicant that he was by virtue of his age a "youthful offender" and reliance was placed on what had been said by Batt, J.A. in R. v. Mills[1]. Mr Boyce submitted that notwithstanding the serious nature of this armed robbery and the prevalence of this type of offence, there had been nothing in the circumstances of the present case to suggest that the principles usually applicable to youthful offenders ought not to have applied to the sentencing of the applicant. He submitted that the judge erred by not placing appropriate weight on the applicant's youth, and that he failed to make it "the primary consideration" and to emphasise rehabilitation over general deterrence. He submitted that the applicant's youth should have been the primary or guiding consideration when it came to sentencing. In particular, Mr Boyce complained of the fact that the judge had said during the plea that "some of the young offender principles brush off on him, but he's not truly a young offender; he is a young man" and later "to some extent, the young offender principles apply, but only to some extent".
[1][1998] 4 V.R. 235 at 241, and in particular the three general propositions accepted by his Honour at that page.
The applicant was plainly a youthful offender, and, as Batt, J.A. said in the second general proposition referred to by his Honour in the passage in Mills previously mentioned, "in the case of a youthful offender rehabilitation is usually far more important than general deterrence". But I do not understand the sentencing judge here to have been saying anything to the contrary of this proposition. In the first of the general propositions referred to by Batt, J.A., emphasis is placed on the primary importance of the youth of an offender, "particularly a first offender"; and in the third of these propositions, particular significance is attached to the situation "where the offender has not previously been incarcerated". In the present case the applicant was not a first offender, and on two occasions in the past had been sentenced to terms of imprisonment actually served. Furthermore his record showed that on three occasions he had been given opportunities for rehabilitation and reform by the courts and on each occasion had failed to take the opportunity so given.
Much was made during the plea of the applicant's youth and the judge expressly said he was obliged to take into account the applicant's relatively young age. In my view there is no substance in the complaint that the judge failed to place sufficient weight upon the applicant's youth.
Nor can it be said that the sentences reveal manifest disparity. The judge went to considerable lengths, in his consideration of questions of parity, to distinguish the roles played by the co-offenders in the armed robbery. At the conclusion of the plea the judge expressly said that in sentencing he would have to take parity of sentencing into account, including a comparison of the parts the co-offenders had played. In consideration of questions of parity it is of course well established that where the circumstances of each offender or of his involvement in the offence are different, then a different sentence may be called for.
On the question of manifest excess, Mr Boyce submitted that, in light of all the applicant's circumstances, his drug addiction, psychological condition, his youth, plea of guilty, the steps he had taken to rid himself of his drug dependency while in custody and his family background, the sentence imposed was manifestly excessive and indeed, in light of his youth, was a crushing one.
In my view this ground is not made out. The judge read and referred during sentencing reasons to the report of Mr Ives. As the judge said, the facts of the case were very serious, a matter which was not contested either on the plea or in this Court. The applicant intended the victim to think he was being threatened with a firearm. The robbery had been premeditated and carefully planned, the premises, a soft target, having been chosen by the applicant. General and specific deterrence and the protection of the community were all important sentencing considerations. The applicant's record was already a bad one, particularly having regard to the fact that on no less than three occasions he had been given an opportunity by the courts and on each occasion had failed to respond to the opportunity given.
In my view, none of the grounds of the application are made out, and the application should accordingly be dismissed.
WINNEKE, P.:
I agree.
BROOKING, J.A.:
I agree.
WINNEKE, P.:
The formal order of the Court is that the application is dismissed.
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