R v Evans
[2005] VSCA 254
•12 October 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No. 241 of 2004 |
| v. | |
| JOHN GABRIEL SOLOVASTRU | |
| THE QUEEN | No. 138 of 2004 |
| v. | |
| JASON ANTHONY JOHN EVANS |
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JUDGES: | CHARLES, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 October 2005 | |
DATE OF JUDGMENT: | 12 October 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 254 | |
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Criminal law – Sentence – Armed robbery – Manifest excess – Both appellant’s with substantial criminal history – Appellant Solovastru on parole at time of committing offences with which currently concerned – Principle of totality – Appeal by Solovastru dismissed – Failure by sentencing judge to take into account period of detention undertaken by Evans – Appeal by Evans allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant Solovastru | Mr C.B. Boyce | G. Tobin & Associates |
| For the Appellant Evans | Mr L.C. Carter | Grubissa White |
CHARLES, J.A.:
I will invite Vincent, J.A. to deliver the first judgment.
VINCENT, J.A.:
The appellants were jointly presented with a co-offender, Benjamin Goldsack, before the County Court at Melbourne, on 7 June 2004, on three counts of armed robbery committed at Narre Warren on 30 January 2004 (counts 1, 2 and 3) and one count of theft (count 4) which related to the use of a stolen motor vehicle in the carrying out of the robberies encompassed by the other counts. All pleaded guilty.
I should add at this point that Goldsack also pleaded guilty to a further charge of handling stolen goods (count 5).
A fourth co-offender, Mark Anthony Phillips, was separately presented, on 9 June 2004, but before the same judge. He also pleaded guilty to counts 1 to 4.
The appellant Solovastru admitted six findings of guilt arising from an appearance before the Children's Court in June 1993, and 105 convictions from seven Magistrates' Court appearances and one County Court appearance, between 8 November 1995 and 28 June 2002. His offences included robbery, assault in company, assault with a weapon, threat to kill and sundry offences of dishonesty. Of particular significance in the present context is a conviction for armed robbery in the County Court, on 28 June 2002, for which he was sentenced to imprisonment for a period of three years with a non-parole period of 18 months. He was at large on parole for that offence at the time of the commission of the offences with which we are here concerned.
The appellant Evans also had a very substantial criminal history. It consisted of ten findings of guilt from four Children's Court appearances, between 23 June 1993 and 6 March 1996, and 188 convictions from eight Children's Court appearances and twelve Magistrates' Court appearances, between 3 January 1995 and 12 August 2002. They related, inter alia, to a large number of offences of dishonesty, and included convictions for robbery (four charges in the Children's Court on 4 March 1997), unlawful assault, the possession of weapons, assault with a weapon, aggravated burglary, reckless conduct endangering life, and threatening to inflict serious injury.
Goldsack's criminal history comprised two findings of guilt from a Children's Court appearance on 4 December 1995 and 80 convictions from three Children's Court appearances, nine Magistrates' Court appearances, and one County Court appearance between 6 October 1994 and 6 April 2001. He had convictions for, inter alia, offences of dishonesty and the possession and use of drugs and convictions for three counts of armed robbery in the County Court on 6 April 2001. He was on parole in respect of the armed robbery offences at the time that he was involved in these matters.
The criminal history of the fourth offender, Phillips, consisted of 76 convictions from 11 Magistrates' Court appearances and two County Court appearances between 11 January 1993 and 25 January 2001. They included convictions for four counts of armed robbery from two County Court appearances on 12 April 1995 and 7 December 2000.
After hearing pleas advanced in mitigation of penalty on behalf of each of the appellants, the learned sentencing judge, on 10 June 2004, imposed the following sentences on each:
On count 1 - 7 years' imprisonment
On count 2 - 7 years' imprisonment
On count 3 - 7 years' imprisonment
On count 4 - 3 years' imprisonment.
His Honour directed that six months of the sentence imposed in respect of each of counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on count 1, thus creating a total effective sentence of eight years' imprisonment, in respect of which a non-parole period of five years was fixed. He ordered in the case of the appellant Solovastru that this sentence was to be served cumulatively upon any period of imprisonment required to be served by the Adult Parole Board.
Goldsack and Phillips were similarly sentenced on counts 1 to 4. On the handling of stolen goods count (count 5), Goldsack was sentenced to imprisonment for three years. As there was no order for cumulation made with respect to that sentence, in his case the total effective sentence was also eight years' imprisonment, and both Goldsack and Phillips were required to serve a minimum period of five years before becoming eligible for parole. His Honour directed that the sentence imposed on Goldsack was to be served cumulatively upon any period that he was required to serve in consequence of his breach of the earlier parole order to which he was subject.
The circumstances surrounding the commission of the offences encompassed by counts 1 to 4 can be described briefly.
At approximately 4.30 p.m. on 30 January 2004, a stolen Toyota Corolla sedan, occupied by the appellants and their two co-offenders, was observed to pull up in front of the Australia Post Office Shop in Webb Street, Narre Warren. Goldsack, armed with a loaded sawn-off .22 calibre rifle, left the vehicle and ran into the shop. He was wearing a black balaclava and a dark blue hooded jacket with the hood over his head. He was followed by Solovastru, who was armed with a sawn-off double-barrel shotgun. Solovastru was also wearing a balaclava which covered his face. Phillips, who was dressed in white coveralls with a hood, followed him, while Evans, who remained seated in the Toyota, concealed his features with sunglasses.
Upon entering the shop, Goldsack, Phillips and Solovastru threatened the staff and customers present, forcing them to lie on the floor, whilst pointing their firearms at them. One of those in the shop was a four-year-old child whose father bravely lay on top of him in order to protect him. Phillips jumped the service counter and demanded that the staff hand over the contents of the cash drawers and safes. A staff member behind the counter, Janet Wilson, described seeing two barrels pointed straight at her and hearing a voice say "get down". This would undoubtedly have been a terrifying experience. Phillips then removed the contents of the cash drawers ($7,552.45), but was thwarted in his desire to secure the contents of the safes which were fitted with time delay mechanisms. These actions constituted the basis of count 1.
During the time that Phillips was so engaged, Goldsack and Solovastru were moving around the shop, brandishing their firearms and directing numerous threats and demands to the customers lying on the floor.
Counts 2 and 3 relate to two female customers, Geraldine Nivison and Kathryn Letzing, who were robbed at this time. Goldsack brandished his loaded weapon at Ms Nivison, ordering her to "drop your money and bag and get on the ground". She complied and he took her handbag and a calico bag which contained money and personal property. In total, he secured $3,500 in cash from her.
Kathryn Letzing was standing at the counter near the front entry when she was confronted by Goldsack, who commanded her to "get down". She had left her purse, containing approximately $70, on the counter and later noticed that it had been taken.
When Goldsack was arrested shortly after these events, he was found to be in possession of Nivison's handbag and of Letzing's purse.
After committing the offences, the three accused ran from the building and returned to the vehicle where Evans was waiting. They fled the scene, but were arrested later that day.
Mr Boyce of counsel, who appeared on behalf of the appellant Solovastru, has advanced two central contentions. First, it was argued that when regard is had to the personal circumstances of his client, the sentences imposed upon him can be seen to be unduly harsh and made more so by reason of his liability to serve the earlier parole period to which I have referred. Attention was drawn in this context to Solovastru's extremely disadvantaged background, which included, among other unfortunate experiences, substantial physical abuse at the hands of his father. The appellant, counsel submitted, had, for practical purposes, been left to fend for himself at a very early age, and it was hardly surprising, he argued, that the appellant found himself in correctional institutions when quite young and addicted to drugs. His level of personal culpability for the offences and his criminal history generally had to be assessed against that background. It was also apparent, Mr Boyce submitted, that the appellant had made very significant endeavours towards his rehabilitation in the period following their commission. He had pleaded guilty and had demonstrated both remorse and the presence of a determination to reform his life. He had undertaken a variety of courses since his return to custody and had done, in effect, all that it was possible for him to do in order to effect his eventual rehabilitation. Inadequate weight, Mr Boyce contended, had been given by the sentencing judge to these considerations.
The second proposition advanced was that proper sentencing practice required that a distinction should be made between the sentence imposed on count 1 and that imposed on counts 2 and 3. The relevant differences, it was submitted, were that count 1 related to a planned robbery by a group upon a major institution, while counts 2 and 3 related to the opportunistic robbing of single individuals who, by chance, were present at the time. Further, it was said, the co-offender Goldsack was primarily responsible for the commission of these offences and it was he who was found to be in possession of the goods. A comparison was made by Mr Boyce with the situation presented in the cases of R. v. Bekhazi[1] and R. v. Pearce[2]. He did not argue that they were identical, but that there was recognised in them a commonality of circumstances to which regard was required in the proper exercise of sentencing discretion. Bekhazi, of course, was concerned with the attribution of culpability for different offences, for what was referred to by myself in the Court in that matter as the one action, and Pearce involved the presence of common elements in respect of offences for which sentences were to be imposed. Nevertheless, there were, in the present case, some overlapping circumstances relating to the separate offences which would, of course, have to be taken into account by a sentencing judge in ensuring that double punishment was avoided. I would add that in my view there is nothing in his Honour's remarks, nor in the sentences imposed by him, that suggests that he may have fallen into error in that respect.
[1](2001) 3 V.R. 321.
[2](1998) 194 C.L.R. 610.
In my view, neither of the basic contentions advanced on behalf of this appellant possesses force. In the circumstances of the present matter, no sensible distinction can usefully be drawn between the robbery of what was termed "a major institution" but was in reality a small shop in an outlying area, and the robbery of persons who were present in the premises. In any event, it should not be forgotten that the weapons were not pointed at "an institution" but at human beings going about the performance of their ordinary duties or business. Count 1 related to the robbery committed not upon an institution but upon Janet Wilson and counts 2 and 3 of customers in the shop. It is hardly to the point that there may have been an opportunistic seizing of the chance to rob the two customers and evident from the entry of the plea of guilty by the appellant that the actions of Goldsack fell within the scope of the common enterprise in which they were all engaged.
The armed robberies committed in the Post Office Shop were almost classic in their type and execution. They were well planned, with a car being stolen for the purpose, and they were perpetrated with the employment of disguises. They were effected by four experienced criminals, with the use of two guns and the making of verbal threats, and they were carried out at a time when both customers and staff could be expected to be present in the premises. The personal impact upon those persons is, of course, both apparent and entirely understandable. The appellant Solovastru participated fully and directly in the commission of very serious offences in a very serious fashion, whilst brandishing a double-barrelled shotgun. Not only did he have an extensive criminal history, but his personal culpability was increased by the fact that he was on parole at that time following his conviction for an earlier armed robbery.
The principles of denunciation and both specific and general deterrence had to assume substantial significance in the determination of appropriate sentences for each of the offences committed.
It is apparent from his Honour's sentencing remarks that he directed attention to all relevant principles and considerations to be taken into account in the determination of an appropriate sentence in this case and specifically to the matters raised in this Court. None of the individual sentences imposed upon Solovastru could, in my opinion, be perceived as manifestly excessive in the circumstances, notwithstanding, and giving full weight to, the matters advanced in mitigation on his behalf, and bearing in mind the progress that he has made since that time, as outlined to us by his counsel.
It was not suggested, either in the court below or before us, that there were any exceptional circumstances of the kind contemplated by s.16(3)(b) of the Sentencing Act that suggested the judge may possibly have fallen into error in not directing concurrency of service of the sentence imposed by him and any period of time that the appellant may have been required to serve for breach of parole.
Finally I am unpersuaded that his Honour's approach had the effect of creating a total effective sentence that breached the principle of totality. The non-parole period fixed can also be seen to have been appropriate.
Accordingly, I would dismiss this appeal.
The appellant Evans has relied on two grounds. I will first deal with the contention advanced on his behalf that the learned sentencing judge erred in imposing identical sentences upon him on counts 1 to 4 to those handed down upon the other three offenders.
In support of this claim, the attention of the Court was drawn to the following considerations:
(a)The appellant, in distinction to all of his co-offenders, had no prior history of the commission of the crime of armed robbery. Goldsack, it was pointed out, had three prior convictions for this offence. Solovastru had one and Phillips had four such convictions from two separate court appearances;
(b)Two of the co-offenders were on parole at the time, each, it was again pointed out, following conviction for armed robbery;
(c)The role played by Evans was limited to that of the driver of the vehicle used. Specifically, he was not involved directly in the opportunistic robberies committed upon Ms Nivison and Ms Leitzing;
(d)He was the youngest of the offenders; and finally
(e)Although his Honour indicated in the course of the hearing that he would take into account a period of 210 days detention undertaken by Evans that was not referable to any matter proceeded with by the Crown, the sentence did not reflect this.
I will address these matters in turn.
(a) The criminal histories of each of the four offenders have been set out earlier, although I should point out that in the case of Phillips the Court has not been provided with the detail of his various offences. Although the appellant Evans had no prior conviction for the crime of armed robbery, when the extensive range, serious character and number of crimes committed by him are taken into account, no differentiation on that basis was required nor, in my opinion, would any be justified.
(b) With respect to the significance of the fact that two of the appellant's co-offenders were on parole at the time, his Honour specifically ordered, although it was not necessary for him to do so by reason of the operation of s.16(3)(b) of the Sentencing Act, that the sentences imposed on those two offenders were to be served cumulatively upon any period that they may be required to serve for their breaches. He obviously directed his mind to that distinction and can be assumed to have taken it into account when addressing the principle of totality in their separate cases. I do not think that error has been shown nor can it be inferred in his approach to this aspect when sentencing the appellant Evans.
(c) The appellant Evans was an active participant in effecting the common design of those engaged in the robberies. His role, as driver of the vehicle used, was an important one. It may well be that his liability for what occurred in the robberies committed upon Ms Nivison and Ms Letzing arose by reason of the application of the concept of extended common purpose, but that would not represent a basis attracting a differential in penalty. In other words, he must share in full measure responsibility for what took place.
(d) There was no significant age disparity between this appellant and his confederates. He was 24 years old. Solovastru and Goldsack were only a year older and Phillips was 28 years of age.
In summary, in my opinion, there is no substance to any of these complaints. A different position can be seen, however, with respect to the last matter, that is, the period of 210 days detention that Evans had undergone and which, in conformity with the approach adopted by this Court in R. v. Renzella[3] and R. v. Stares[4], should have been taken into account.
[3][1997] 2 V.R. 88.
[4](2002) 4 V.R. 314.
Although his Honour indicated in his sentencing remarks that he had done so in a "broad way", he imposed the same sentences upon the appellant as he did upon the other offenders. There is nothing in the material that suggests that Evans should have been dealt with more harshly than his confederates and no explanation as to how, if he made some allowance for this period, his Honour arrived at the same result with respect to the particular offences.
In the circumstances, I am of the view that the appeal of this appellant should be allowed for the purpose of making an appropriate adjustment. This can be achieved most easily through a variation in the orders for cumulation. I would set aside those orders in the case of Evans and substitute in lieu thereof an order that five months of the sentences imposed on counts 2 and 3 be served cumulatively upon the sentence imposed on count 1 but concurrently with each other. That would create, in his case, a total effective sentence of seven years and five months. In consequence, I would vary the non-parole period that he would be required to serve to four years and five months, and correspondingly reduce the period of licence disqualification order by the judge in the court below.
CHARLES, J.A.:
I agree.
BUCHANAN, J.A.:
I also agree.
CHARLES, J.A.:
The Court's orders are as follows:
In relation to Mr Solovastru, the appeal is dismissed.
In relation to Mr Evans -
The appeal is allowed.
The Court confirms the individual sentences imposed on each count but sets aside the orders for cumulation.
In lieu thereof, the Court orders that five months of each of the sentences imposed on counts 2 and 3 be served cumulatively on the sentence imposed on count 1, but concurrently with each other, resulting in a total effective sentence of seven years and five months.The Court fixes a non-parole period of four years and five months.
The Court declares that, as at this day, the period to be reckoned as already served under the sentence is 622 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.
In respect of count 4, the Court cancels the driving licence of Jason Evans and disqualifies him from obtaining such a licence for four years and five months as from 30 January 2004.
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