R v Emanuel
[2005] VSCA 60
•10 March 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 189 of 2004
| THE QUEEN |
| v. |
| STEPHAN PHILLIP EMANUEL |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | GEELONG | |
DATE OF HEARING: | 10 March 2005 | |
DATE OF JUDGMENT: | 10 March 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 60 | |
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Criminal law - Sentencing - Attempted armed robbery - Inadequacy of sentencing reasons - Error in sentencing established - Remorse - Guilty plea - Appellant's ill health and mentally disturbed state - Sentence of four years, and non-parole period of two years - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. with Ms R. Orr | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr G.M. Hughan | Victoria Legal Aid |
WINNEKE, P.:
I will invite Charles, J.A. to give the first judgment in this appeal.
CHARLES, J.A.:
The appellant pleaded guilty on 14 May 2004 in the County Court at Geelong to a presentment alleging one count of attempted armed robbery. The maximum penalty for this offence was 20 years' imprisonment. He admitted one prior conviction in the Geelong Magistrates' Court in 1998, of little relevance to the present offence.
A plea was heard during which a report dated 10 May 2004 from a forensic psychologist, Mr Ian Joblin, was tendered. Evidence was also given by the appellant's father, Ronald Emanuel. This evidence included references to the appellant having been sexually abused as a child, having lost his brother to a motorcycle fatality, the fact that the appellant's family had broken down, and that he was said to suffer from alcoholism and had considerable ill health but that his mental state had improved somewhat since he had been incarcerated. There was other evidence that the appellant suffered from anxiety and depression in part as a consequence of having multiple serious medical conditions, including chronic lymphocytic leukaemia and a near fatal attack of ruptured diverticular disease requiring bowel resection and a colostomy bag for some time. Mr Joblin considered that the appellant was not suffering from a mental illness but did have a very serious depression, much of that in his own perception of his medical complaints and of the sacrifices he had made for his children, which were not recognised or appreciated by them. The appellant's attitude to the offence for which he was before the court was described by Mr Joblin in the following terms -
"That attitude includes remorse and he laments hurting her. He reported that he should not have hurt anyone. He could provide no particular reason for the commission of these offences apart from the possibility of obtaining money. In my opinion, however, because of his recent release from a psychiatric unit and his report of depression, there would seem to be some basis to consider that at the time of the commission of the offences his mental state was somewhat disturbed."
On 23 July 2004 the judge sentenced the appellant to four years' imprisonment and fixed a non-parole period of two years.
On 26 November the appellant was granted leave to appeal pursuant to s.582 of the Crimes Act 1958. He now appeals on the grounds that -
1. The sentence is manifestly excessive.
2.The judge erred in finding that the appellant "displayed no contrition" when he surrendered himself at Geelong police station, that the appellant had a balaclava in his possession, and that it was significant that there were two other knives found in the appellant's vehicle.
3.The judge erred in failing to give mitigatory weight to the fact that the appellant surrendered himself to police, that he was being held as a protection prisoner, the appellant's ill health, and his disturbed psychological state at the time of his offending.
The circumstances of the offence were as follows. At 1.30 a.m. on 30 December 2003 the appellant approached the victim, Mrs Lorraine Temple, in the car park at Coles New World supermarket in Belmont. Mrs Temple noticed the appellant walking towards her, became apprehensive and made a dash for her car. She was attempting to enter the car when the appellant blocked her from shutting the car door with his body, dragged her from the car by her hair, and held her in front of him with his left arm wrapped around her neck and his hand clamped hard over her mouth to stop her from screaming. The appellant held a Wiltshire Staysharp knife in his right hand, the blade of which was pressed up against Mrs Temple's neck. He held her for about ten seconds and told her, "Shut up, I've got a knife and I'm going to slit your throat." He then loosened his hand over her mouth and Mrs Temple asked, "What do you want?", to which the appellant replied, "First of all shut up or I’m going to kill you." A little while later Mrs Temple saw a young man walking from the supermarket and screamed "Help". Two more people followed from the supermarket and again she yelled "Help" three times. They then turned towards the appellant, who let go of Mrs Temple, walked to his car and slid the knife into a ruler pocket in his overalls. The three men reached Mrs Temple as the appellant was getting into his car, but they obtained his registration number. Mrs Temple had been subjected to a terrifying experience, and was extremely panic-stricken.
An hour or so later the appellant surrendered himself at the Geelong police station, in a condition where he was plainly affected by alcohol and/or drugs. He produced the knife, which was taken from him. In a record of interview with the police the appellant said that before the attack on the victim he had had two cans of bourbon and coke or bourbon and cola, but that he had not had any medication. He said he was sober and lucid. He told the police that he had driven to the supermarket to buy cigarettes. He said he had no idea why he restrained Mrs Temple at knifepoint and no idea what he was going to do with her. He claimed that he was short of money, and that that was why he had taken the knife to help him in the commission of a robbery. He said that he had $90 or more in his possession at the time of his arrest and he also had some cigarettes.
Counsel for the appellant at the plea referred to the statement of the police officer (Senior Constable Martin) to whom the appellant had surrendered himself, and to whom the appellant had said as he handed in the knife, "That is for you. I've done something and I want to give myself up." He said he had "grabbed" a lady, and asked, "Did I cut or nick her?" He said he did not know what he was doing, and asked whether the lady was all right, and said that he needed help. It was submitted that the appellant had pleaded guilty at the earliest possible stage and made a full and candid acknowledgement of his guilt. Counsel expanded on the appellant's background, the difficulties in his dealings with his two children, arising from a relationship which he had had with a woman for some four or five years. Counsel relied on the fact that the appellant had been diagnosed during the 1990s as displaying non-specific signs of leukaemia, later found to be of the lymphatic system, and reference was made to his bowel reconstruction requiring the application of a colostomy bag. Associated with these physical conditions was excessive consumption of alcohol from time to time. The appellant was said to be isolated, extraordinarily alienated and growing greatly depressed, in circumstances where at one point he had elected to commit suicide by drinking himself to death, knowing that leukaemia was eating its way through his system.
In his evidence, the appellant's father, Ronald Emanuel, said in answer to the question whether the appellant had indicated any remorse with regard to the victim, that -
"Well, he has, he has said he was sorry he has done it and what he did he, he feels sorry for the lady ... ."
Later, counsel repeated on several occasions that the appellant was remorseful and had shown remorse, that he had presented himself at the earliest possible time to the police, he had pleaded guilty, and had saved both the victim from giving evidence and the time of the court by pleading guilty at the earliest time.
The judge, in sentencing reasons, after referring to the fact that the appellant had surrendered himself at Geelong police station, continued -
"Your car revealed more knives and a knitted balaclava-type hood. You displayed no contrition to Senior Constable Martin at the police station."
After recounting various personal matters relating to the appellant, the judge said he gave weight to the appellant's plea of guilty, but was seriously concerned about the appellant's psychological frailty and vulnerability. No reference was made to the appellant's remorse.
In this Court, Mr Hughan for the appellant in written submissions argued that the judge had erred in finding that the appellant "displayed no contrition" when he surrendered himself at the Geelong police station. He submitted that the evidence before the Court was that the appellant had shown remorse for his conduct not only when he surrendered himself at the police station and spoke to Senior Constable Martin shortly after the offence but also by pleading guilty at the first opportunity and in the uncontradicted evidence of his father. Complaint was also made about the judge's comment that the appellant had had a balaclava in his possession and that it was significant that there were other knives in the appellant's car. Counsel argued that it had not been suggested by the Crown that the knitted item located in the appellant's car was a balaclava, and the Crown prosecutor during opening had merely referred to it as a "beanie". Furthermore, it had never been suggested by the Crown that there was any connection between the offence and the other knives which were in the appellant's car.
Next it was argued that the judge erred in failing to give any mitigatory weight to the fact that the appellant had surrendered himself to police, to his ill health and his disturbed psychological state at the time of the offending, to the fact that he was being held in protective custody, and to his plea of guilty.
Mr McArdle, for the Crown in this Court, submitted that the matters referred to in ground 2 were of little moment in sentencing. As to ground 3, he argued that the judge had specifically mentioned the appellant's mental and physical condition, and that these could not, in any event, have ameliorated the application of the principles of specific and general deterrence. He submitted that the fact that the appellant was serving his sentence in protection had not been emphasised in the plea. He did not accept that the sentence of imprisonment would be any more burdensome for the appellant than life outside prison, in consequence of his various disorders.
As to manifest excess, it was submitted that the offending, having regard to its impact on the victim, required a substantial term of imprisonment to be imposed. Mr McArdle argued that the unusually low non-parole period showed that the judge took into account the matters advanced in mitigation, and the sentence imposed was within range, indeed lenient.
The judge's sentencing remarks consist of some three pages, nearly half of which are composed of quotations from the report of Mr Joblin. The first page sets out a brief statement of the facts of the offence. Unfortunately, the sentencing reasons are so abbreviated that the reader is quite unable to discern what weight the judge gave to the appellant's plea of guilty, to his ill health and disturbed psychological state or the fact that he had surrendered himself to the police. There was abundant evidence of the appellant's remorse, but no mention at all was made of this by his Honour, save to assert that the appellant had displayed no contrition when surrendering himself. One can only conclude that rather than giving weight to the fact that the appellant had surrendered himself to the police, the judge found that he had no remorse for his offending, which would have been quite contrary to a substantial body of evidence.
In my view, with respect, there can be no question, in these circumstances, but that error in sentencing has been established and the sentencing discretion reopened.
The appellant was plainly entitled in the circumstances to place reliance on the fact that he had surrendered himself to the police and on his remorse. His ill health was also a factor tending to mitigate punishment since it could reasonably be inferred from the evidence that imprisonment would be a greater burden on the offender by reason of the state of his health; R. v. Smith[1].
[1](1987) 44 S.A.S.R. 578 at 589.
There was also substantial evidence presented on the plea to support the contention that the appellant's mental state was "somewhat disturbed" at the time of the offence, from the report of Mr Joblin, the report of the Geelong West Community Mental Health Clinic dated 12 January, and the evidence of the appellant's father. There was certainly therefore evidence from which one could conclude that the appellant's moral culpability was somewhat reduced. Evidence was also given that the appellant was serving his sentence in protection, but although this was a matter of relevance in sentencing, no submission was made indicating why the appellant was in protection, or for how long this situation might last. Plainly, the appellant was entitled to a sentencing discount for his very early plea of guilty.
Notwithstanding these mitigatory factors, it must be said that the offence was a very serious one, which, as I have said, subjected the victim to a terrifying experience. Mrs Temple said in her victim impact statement that it was the most terrifying moment of her life, in which she genuinely believed she was going to die. The effect of the appellant's conduct upon Mrs Temple is graphically displayed in that statement.
Mr Hughan for the appellant, in an admirably succinct argument, has forcefully put to us that the sentence imposed by the judge was beyond the permissible sentencing range, having regard to all the various matters to which reference has previously been made. In my view, however, the sentence actually imposed by the judge was, notwithstanding the matters in mitigation, lenient and the non-parole period was itself low. I would not, for myself, impose a sentence, either as to head sentence or non-parole period, less than that imposed by the sentencing judge.
It follows in my view that the appeal should be dismissed.
WINNEKE, P.:
I agree. I think, like Charles, J.A., that the sentencing discretion exercised by the learned judge below miscarried because of his Honour's remarks about the lack of contrition. His sentencing discretion is therefore reopened to this Court. Although there is force in the submission made by Mr McArdle that the non-parole period which his Honour imposed is unusually low when compared to the head sentence imposed, I am in agreement with Charles, J.A. that this Court would impose the same sentence, and that the appropriate order therefore should be that the appeal be dismissed.
CHERNOV, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is, for the reasons given, that the appeal is dismissed.
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