R v El-Hag
[2007] VSCA 179
•27 August 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 366 of 2006
| THE QUEEN |
| v |
| PATRICK EL-HAG |
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JUDGES: | CHERNOV, VINCENT and KELLAM JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 August 2007 | |
DATE OF JUDGMENT: | 27 August 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 179 | |
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Criminal law – Sentencing – Attempted armed robbery – Recklessly causing injury – Whether appropriate weight given to early plea of guilty – Whether factual error made by judge had material impact on sentences imposed – Relevant criminal history – Manifest excess – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble, SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Mr G A Georgiou | Victoria Legal Aid |
CHERNOV JA:
I shall ask Vincent JA to deliver the first judgment.
VINCENT JA:
The appellant pleaded guilty in the County Court sitting at Melbourne, on 16 November 2006, to one count of attempted armed robbery (count 1) and one count of recklessly causing injury (count 2).
He admitted 17 prior convictions arising from five court appearances between October 2000 and July 2003. Notably for present purposes, they included seven counts of armed robbery, one count of attempted armed robbery, one count of assault in company, and one count of causing serious injury. There were also various drug-related and driving offences.
After hearing a plea in mitigation of penalty, the sentencing judge, on 20 November 2006, imposed the following sentences:
On count 1 - four years' imprisonment;
On count 2 - two years' imprisonment.
His Honour directed that one year of the sentence imposed on count 2 be served cumulatively with the sentence imposed on count 1. This created a total effective sentence of five years' imprisonment, in respect of which a non-parole period of two years and nine months was fixed.
Having been granted leave to do so, on 6 June 2007, the appellant seeks to overturn the sentences imposed upon him on the six grounds set out in his Full Statement of Grounds that:
1.The learned sentencing judge erred in that he sentenced me on the basis that I had not pleaded guilty at the earliest opportunity.
2.The learned sentencing judge erred in that he sentenced me on the basis that I had armed myself with a knife with the intention of committing an armed robbery.
3.The learned sentencing judge denied me procedural fairness in that counsel on my behalf had submitted that I had armed myself with a knife because of problems I had with people in the drug culture and for self protection and this was not challenged and I was not asked about why [I] had the knife when I gave evidence.
4.The learned sentencing judge erred in that he found as an aggravating factor that I had attempted to stab the victim with the knife. I was not charged with attempting to inflict serious injury and the evidence did not support a finding that I had attempted to stab the victim.
5.That the learned sentencing judge erred in finding that it was an aggravating factor that I had a prior conviction for 7 armed robberies.
6.That taking into account all of the circumstances of the offences and the matters personal to the applicant the sentence was manifestly excessive.
I now turn to the circumstances relating to the commission of the appellant's offences.
The Background
On 28 April 2006, at approximately 7.00 pm, Trevor De Witt, the victim, approached a Commonwealth Bank ATM in High Street, Thomastown. Although he noticed the appellant nearby, he was unconcerned, and proceeded to withdraw $40, which he placed in his wallet.
As he walked towards his car, which was parked a short distance away, he became aware that the appellant was following him, keeping a distance of approximately three metres behind. On hearing a voice, De Witt turned and saw the appellant using a mobile telephone. When he queried whether the appellant was talking to him, the appellant denied that that was the case.
As De Witt drew closer to his vehicle, the appellant asked him for a cigarette, to which he replied that he did not smoke. De Witt then opened his car door and was seated in the vehicle when the appellant, who had by that stage positioned himself in the open doorway, produced a knife and pointed it towards De Witt's stomach and chest area. He then demanded: "Give me the money, don't make me hurt you. Don't make me stab you."
In order to protect himself, De Witt grabbed the appellant's arm that was holding the knife and punched him two or three times to the head. At some point, the appellant was also poked in the eye. During the struggle, the appellant referred to De Witt as "Michael" and said something about this person having "ripped him off." When the victim informed him that his name was not Michael, the appellant apologised and the fight stopped.
De Witt felt a sticky sensation in his hand and noticed a cut on the back near his little finger, approximately two centimetres in length. He then drove to a friend's house in Thomastown, where a bandage was applied.
On leaving his friend's home, De Witt drove along High Street, past the location where the incident had occurred, and saw the appellant sitting on some steps in front of the post office, next to the Commonwealth Bank ATM. De Witt then managed to attract the attention of a passing police car and informed the police members of what had taken place.
When spoken to by police members at the time of his arrest, and still sitting on the steps, the appellant said, "This guy attacked me. He's a drug dealer and he tried to sell my brother some drugs the other day. He's got drugs on him now." He was asked where the knife was and he replied, "I don't have a knife. He's got the knife." One of the police members subsequently noticed a knife secreted in a crevice near the steps. He stated that he “observed the blade to be a hacksaw blade or similar, that had been filed and adapted”. It was about ten centimetres long and had some blood on it.
The appellant was then taken to the Epping police station, where an interview was conducted. He told the police that he was trying to "get" the victim, as he was a drug dealer called Michael who had been selling drugs to his young cousin. He denied that he had a knife, or that he had attempted to rob De Witt.
Ground 1
In support of this ground, it was submitted that the sentencing judge fell into error in finding that the appellant did not plead guilty at the earliest opportunity, although his Honour accepted that he had done so at "a reasonably early point in time, at the committal hearing".
This ground lacks substance. Although perhaps infelicitously expressed, it is evident that his Honour was saying nothing more than that, although the appellant did not accept responsibility for his offending at the outset, he had done so at an early stage, for which he had to be given credit. This approach was clearly justified in the circumstances, bearing in mind that, as I have mentioned, when interviewed by the police on his arrest, the appellant asserted that the victim's allegations were false and claimed that it was the victim who produced a knife. There is nothing in his Honour's remarks that could reasonably give rise to a concern that appropriate weight was not accorded to the appellant's plea of guilty and the early stage at which his indication to do so was given.
Grounds 2 and 3
These grounds assert that the sentencing judge erred in finding that the appellant had equipped himself with a knife in order to commit his crime, there being, it was said, no evidentiary basis for this conclusion. Further, counsel emphasised, the finding was made against the background of the unchallenged submission by the appellant's counsel that his client had the knife for self-protection by reason of what were described as problems that he had with unidentified "people in the drug culture". Save for the explanation proffered by counsel, there was nothing before the court concerning the circumstances relating to the possession of the knife and nothing in the material before the sentencing judge capable of supporting a finding beyond reasonable doubt that the appellant had, at some time earlier, armed himself with the weapon for the purpose of committing the offence of armed robbery. It is reasonable, in my view, to harbour some suspicion that that may have been the case, but that is a different matter. Nevertheless, the appellant was, for some reason concerning which he gave no explanation, in possession of a weapon that he decided to employ for the purpose of committing an armed robbery. It is also to be borne in mind that his Honour made the finding that there was no evidence of pre-planning or appearance of pre-planning with respect to the attempted robbery that in fact took place. The appellant gave no evidence concerning the circumstances under which he had the knife, or why he was in the vicinity, and his explanation concerning a person called Michael is problematic in a number of senses. In the circumstances, all that can be said with clarity is that he had in his possession at that time a knife that he chose to use to rob the victim. There is no suggestion in the material before the Court that what may be a factual error or an inappropriate inference being drawn by the judge has had a material impact upon the sentences handed down.
Grounds 4 and 5
In his sentencing remarks, his Honour stated:
"…there are a number of factors which [have] aggravated the seriousness of your offending, in particular, the fact that you equipped yourself with a weapon in order to commit the crime, and indeed it would appear you were prepared to use it.
You have been convicted of seven other armed robberies as well as an attempted robbery. For a young man, this is a very serious record. In addition, according to your victim on this occasion, you attempted to stab the victim with the knife. All of these factors are serious aggravating factors which I must take into consideration."
Under ground 4, the appellant submits that it was not open to the judge to find that he attempted to stab the victim with a knife; first, because that finding could not be properly made on the evidence and, secondly, because he had not been presented on any count that contains that element.
With respect to the first of these contentions, it is relevant that, when outlining the circumstances surrounding the commission of the appellant's offences, the prosecutor stated:
"…De Witt was sitting in his car when El-Hag produced a weapon believed to be a knife. De Witt didn't know where El-Hag had got the knife from, which he was holding by his waist and pointed towards De Witt's stomach and chest area. El-Hag then said, 'Give me the money. Don't make me hurt you. Don't make me stab you', which forms count 1.
De Witt was shocked, angry and scared when he heard and saw El-Hag's behaviour, so to protect himself he jumped at El-Hag. De Witt grabbed at the arm that had the knife and punched him two or three times to his head. A struggle ensued between De Witt and El-Hag and De Witt at some stage poked El-Hag in the eye. During the struggle, De Witt could feel El-Hag's arm with the knife waving about, trying to stab De Witt." (my emphasis)
As counsel for the Crown pointed out in the written submissions provided to the Court, at no stage did the appellant's counsel take issue with that account, either during the course of leading evidence from the appellant in the proceeding or by way of submission. It is apparent that the sentencing judge was entitled to act upon it in the circumstances. It is, of course, significant in this regard that, for what are obvious good forensic reasons, counsel appearing on behalf of the appellant in the court below steered well away from emphasising the detail of what took place at the time of the commission of the offences.
The second contention must, I consider, also be rejected. The appellant pleaded guilty to a count of recklessly causing injury. The Crown case was that he caused the injury when he was waving a knife around attempting to stab the victim. The use of the knife in this fashion was clearly treated as an incident of the appellant's attempt to rob and overcome his victim, and not as involving the commission of a separate and more serious offence. This approach was appropriate in the circumstances and involved no breach of the principle enunciated in R v Newman and Turnbull[1].
[1][1997] 1 VR 146.
With respect to ground 5, his Honour did not fall into error in regarding the fact that the appellant had prior convictions for seven armed robberies as aggravating the seriousness of his conduct on the occasion in question. Obviously, save in those situations where, for example, the legislature has enacted that later offences are to be sentenced more severely, an individual is not to receive additional punishment simply as a consequence of the commission of earlier offences.
Equally obviously, this does not mean that the commission of earlier offences is not to be taken into account in the determination of an appropriate sentence for the offence before the court. It is trite to point out that the criminal history of an individual can assume significance in a number of different ways, bearing upon such matters as the level of the offender's personal culpability for his or her conduct, the presence of remorse, the relevance of specific or general deterrence, the offender's prospects of successful rehabilitation, and the need to protect the public. The features of the particular conduct for which he is before the court do not change by reason of the engagement in earlier offending, and, as I have indicated, a person is not to be punished more severely simply as a consequence of the commission of earlier offences. Nor is an individual to be punished for an offence for which he is not before the court. But that background will assume significance for the purposes outlined above. The situation may, in an appropriate case, be viewed considerably more seriously when viewed in the light of an individual's history.[2] Almost identical language to that employed by the sentencing judge in the present case was used by Habersberger AJA in the recent matter of R v Karafilowski[3] to convey this notion. There is no reason to suspect that the sentencing judge here was using it in any different or incorrect sense.
[2]See Veen v The Queen (No 2) (1988) 164 CLR 465.
[3][2007] VSCA 156
Ground 6
In support of this ground, it is said that, while sentences of the order imposed upon the appellant here have been considered appropriate in cases of armed robbery, in the particular circumstances the individual sentences, the total effective sentence and the non-parole period are manifestly excessive. Relevant circumstances upon which reliance was placed in support of this contention were:
(a)the appellant's relative youth and immaturity and the desiranility of his rehabilitation;
(b)the existence of at least some degree of psychological instability that required treatment;
(c) the existence of firm family supports and of opportunities for employment;
(d)the change in the appellant wrought by his first experience of adult imprisonment;
(e) his conduct in prison on remand;
(f) his remorse and early plea of guilty;(g)the fact that count 1 involved an attempt rather than the completed offence of armed robbery;
(h)the relatively minor nature of the physical injury sustained by the victim. (However, I would interpolate at this point that the victim impact statement before the Court indicates that the emotional injury sustained was significantly more severe.); and
(i)the finding of his Honour that the offences were unplanned and unpremeditated.
It was also pointed out that the appellant was 23 years of age at the time of the commission of the offences and 24 at the time of sentence.
It is evident, upon perusal of the sentencing remarks in this case, that the judge was mindful of each of the considerations to which our attention was directed. He adverted specifically to the appellant's age, the presence of remorse, the appellant's plea of guilty and the early stage at which it was presented, the importance of rehabilitation as a sentencing consideration in this case, the fact that the appellant had not previously been incarcerated, the evidence of the psychiatrist Dr Walton and the psychologist Elizabeth Warren, the extent of the injury suffered by the victim, the appellant's addiction to drugs, the family and other supports available to the appellant and the endeavours that he had made to assist himself whilst in prison, and the fact that the offending appeared to lack any pre-planning and was opportunistic. However, as his Honour also pointed out in those sentencing remarks:
"The community is entitled to use the streets of our community at day or night without having to be concerned that they may be set upon, mugged, stabbed and robbed by people like yourself.
You have in the past been given a number of opportunities by serving sentences without having to undergo a sentence of imprisonment. It is apparent that those opportunities have been substantially wasted upon you."
In all of the circumstances, I do not consider that this Court would be justified in concluding that either the sentences imposed upon the appellant, the total effective sentence or the non-parole period was not available to the judge in the proper exercise of sentencing discretion. I would add, with respect to the non-parole period fixed by his Honour in particular, that it is apparent that considerable weight was given to the features operating in mitigation of penalty and the importance of rehabilitation in this case. The only specific error which I am able to detect in his Honour's findings is that which relates, or possibly relates - for it is not quite clear what his Honour was saying - to the circumstances under which the appellant came to be in possession of the knife. I have indicated that in any event I have formed the view that that possible error was not material in the circumstances and the sentences which have been imposed by his Honour do not reflect, of themselves, the commission of error.
Accordingly, I would dismiss this appeal.
CHERNOV JA:
I agree.
KELLAM JA:
I agree.
CHERNOV JA:
The order of the Court is that the appeal is dismissed.
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