R v Greenway
[2007] VSCA 204
•20 September 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 328 of 2006
| THE QUEEN |
| v |
| DARREN JOHN GREENWAY |
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JUDGES: | VINCENT and KELLAM JJA and WHELAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 September 2007 | |
DATE OF JUDGMENT: | 20 September 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 204 | |
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CRIMINAL LAW – Sentence – Armed robbery – Assault – Manifest excess – Alleged factual error – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble, SC | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr S Gillespie-Jones | McNamaras Lawyers |
VINCENT JA:
I will invite Whelan AJA to deliver the first judgment.
WHELAN AJA:
On 16 October 2006, the applicant was sentenced to terms of imprisonment by a judge in the County Court on charges of armed robbery and assault. The applicant sought leave to appeal against the sentences imposed and that application was heard by Chernov JA on 30 March 2007. Chernov JA refused the application. The applicant now seeks leave to appeal from this Court pursuant to s 582 of the Crimes Act.
The circumstances of the offences and the applicant's personal circumstances were set out by the sentencing judge and by Chernov JA. I do not propose to repeat them in any detail again. The applicant committed a robbery on a licensed supermarket on 20 September 2005, armed with two knives. He threatened the staff member behind the counter with one knife, which was a large kitchen carving knife. When the manager intervened and took a knife out of the applicant's pocket, the applicant threatened him as well, raising his arm and holding the large knife in his hand as though he was going to swing the knife at him.
The applicant is now 43 years of age. He has prior convictions for drug and driving offences. He also has prior convictions, which are now quite old, for handling stolen goods, theft and obtaining property by deception. More recently, on 27 October 2004, he was convicted and placed on a 12-month community based order for a number of offences including two charges of obtaining financial advantage by deception, and charges of theft, going equipped to steal, fraudulently using a number plate and fraudulently using a registration label. The offences for which he was sentenced on 16 October 2006 occurred during the period of that community based order.
The sentencing judge heard a plea on 17 August 2006 and on 16 October 2006. Amongst other documents tendered was a report on the applicant's drug and alcohol history by his treating doctor, Dr Tony Michaelson, and a psychological report from Mr Bernard Healey. The sentencing judge also considered a pre-sentence psychiatric assessment and report which he had ordered.
The sentencing judge sentenced the applicant to four years' imprisonment on the armed robbery count and one year's imprisonment on the assault. Pursuant to s 16(1) of the Sentencing Act 1991, as no order for cumulation was made, those sentences are concurrent. The sentencing judge fixed a non-parole period of two years.
When refusing leave on 30 March 2007, Chernov JA gave detailed reasons. Chernov JA rejected submissions put to him that the sentencing judge had wrongly treated the applicant as a heroin addict (dealt with by Chernov JA at [5]), and that the sentencing judge had wrongly characterised the armed robbery as fitting into a category of armed robberies committed by drug and alcohol affected persons to sustain their habit (at [6] and [7]). Chernov JA made observations in relation to the nature of the offence, referring to R v Roy,[1] amongst other authorities (at [11]). Chernov JA also dealt with a submission that the judge had failed to give proper weight to a number of mitigating factors, including what was said to be the applicant's good prospects of rehabilitation, the need for general deterrence to be moderated in the circumstances, the need for specific deterrence to be moderated in the circumstances, and the weight to be given to the fact that on the night before the offences the applicant had attempted suicide and was still affected by an overdose of tablets at the time of the offences.
[1][2001] VSCA 61.
Before us, the applicant submitted that the sentencing judge had made a specific error in paragraph 12 of the reasons for sentence when he said:
Other important sentencing factors are of course denunciation, just punishment and public protection. Of course balanced against all these factors must be your prospects for rehabilitation. The fact that you committed these subject offences as a drug/alcohol affected person, whilst it may offer an explanation for your offending, it in no way serves to mitigate your offending. Indeed it has been the experience of this court that offences of this nature against the so-called “soft targets” are more often than not committed by drug/alcohol affected persons. You were an opportunist in that you took all you could get from your victim. The fact that the proceeds were indeed small is, in the view of this court, of little consequence when sentencing you.
This submission was a variation on the submissions which had been put to Chernov JA and which had been rejected by him (at [5], [6], [7] and [11] of his reasons). Notwithstanding the variation, for essentially the same reasons as Chernov JA gave, I also reject this submission. The observations at paragraph 12 are, in my view, observations directed towards the nature of the offence. What is now put as being the error is that the observations were a reference to both the nature of the offence and the culpability of the offender. I do not interpret them that way. The sentencing judge dealt with the culpability of the applicant at paragraphs 22-25 and in substance he accepted what was put to him by counsel on behalf of the applicant on the plea.
The submission was also made to us, which was similar to what was put to Chernov JA, that there had been a failure to give any or any sufficient weight to a great number of mitigating factors. The sentencing judge in his sentencing reasons did refer to those factors. Counsel for the applicant before us accepted that that was so. In the circumstances, it is not necessary for me to catalogue, by reference to the matters that it is said he should have taken into account and to his sentencing reasons, the places where his Honour did refer to all of the matters that were put to him. It is possible to catalogue them in that way.
What was put to us was not that the judge did not say that he had taken into account all of the relevant matters, but that the sentences were such that he could not have done so in fact. In this respect, particular focus was placed upon the sentence of four years' imprisonment on the armed robbery charge.
The sentencing judge's reasons are careful and detailed. In my view, he did take into account all of the relevant factors which he said he took into account. I do
not accept that the sentence on the armed robbery charge, in itself, reveals that the judge has not taken into account all of the various matters.
It was also submitted that the sentence here was manifestly excessive. Having heard what was in effect a full submission in relation to the issue of manifest excess, I do not accept that the sentences imposed here are beyond the range. It is noteworthy in that respect that no specific complaint was made in relation to the assault sentence, or the non-parole period and, obviously, no complaint was made in relation to the total concurrency between the two sentences. Whilst it might be said that a sentence of four years for armed robbery for a person with no prior history of violence is a stern one, in my view it is not outside the range, given the circumstances of the offence here.
For these reasons and for the reasons given by Chernov JA, with which I agree, I would refuse the application for leave.
VINCENT JA:
I agree.
KELLAM JA:
I likewise agree.
VINCENT JA:
The order of the Court is that the application for leave to appeal against sentence is dismissed.
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