R v Hamann
[2002] VSCA 228
•10 December 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 206 of 2001
| THE QUEEN |
| v. |
| PETER JOHN HAMANN |
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JUDGES: | PHILLIPS, C.J. and CHERNOV and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 December 2002 | |
DATE OF JUDGMENT: | 10 December 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 228 | |
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Criminal law - Sentence - Sentence of 11 years' imprisonment with minimum of 9 years for a series of armed robberies (a firearm) and other associated offences reduced to 10 years with minimum of 8 years
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr S. Grant | Victoria Legal Aid |
PHILLIPS, C.J.:
The appellant, who is aged 28, pleaded guilty in the County Court at Melbourne on 5 July 2001 to an amended presentment containing nine counts. These were: theft of a motor car on 25 June 2000 (count 1); armed robberies on the same day (counts 2 and 3); reckless conduct endangering a person (count 4); attempted armed robbery on 26 June 2000 (count 5); two other armed robberies on the same date (counts 6 and 7); theft of number plates on 27 June 2000 (count 8); being a prohibited person in possession of a firearm between 25 June 2000 and 5 July 2000 (count 9). These offences variously carried maximum penalties ranging from 5 years' imprisonment (count 4) to 25 years' imprisonment (counts 2 and 3, 6 and 7).
The appellant admitted 65 prior convictions from 13 court appearances between May 1990 and January 2000. They included four convictions for armed robbery, one for attempted armed robbery, one for robbery, and 11 other convictions for offences of dishonesty. After receiving a community-based order and a good behaviour bond for offences of armed robbery, he had eventually been imprisoned in December 1994 for a like offence. The sentence was one of 2 years' imprisonment with a 12-month non-parole period.
After hearing a plea for leniency the learned judge sentenced the appellant and a co-offender, Mison. The sentence of the appellant was:
count 1 - 2 years' imprisonment;
count 2 - 5 years' imprisonment;
count 3 - 7 years' imprisonment;
count 4- 3 years' imprisonment, one year to be served cumulatively upon the sentence imposed on count 6.
count 5 - 3 years' imprisonment;
count 6 - 10 years' imprisonment;
count 7 - 7 years' imprisonment;
count 8 - 6 years' imprisonment;
count 9 - 2 years' imprisonment.
His Honour directed that one year of the sentence on count 4 be served cumulatively with the sentence on count 6, making for a total effective sentence of 11 years' imprisonment. His Honour fixed a non-parole period of 9 years and declared a period of 387 days' pre-sentence detention. In this appeal nothing turns on the sentences imposed on Mison and another co-offender, Harvey.
The appellant later lodged notice of application for leave to appeal against sentence pleading the following grounds:
"1. The sentence is manifestly excessive in all the circumstances.
2.The learned judge failed to take into account sufficiently or at all the personal circumstances and background of the applicant.
3.The learned judge failed to give sufficient weight to prospects of rehabilitation in the applicant.
4.The learned judge failed to take into account sufficiently or at all the applicant's emotional, psychological and drug-affected state at the time of the commission of the offences."
It is now appropriate to set out in summary form the facts of these matters. In this exercise I have had recourse to the sentencing judge's reasons for sentence, the contents of which, so far as the facts are concerned, have not been challenged, save for a mistake concerning the wearing of a balaclava by the appellant in one offence.
In June 2000, having met his co-offender Harvey and obtained a semi-automatic .32 pistol from him, the appellant stole a Mitsubishi Magna sedan (count 1). On the same day as this offence the first armed robbery of the series contained within the presentment occurred. This was on a 7 Eleven convenience store at Albert Park. Its commission involved the appellant presenting the pistol at an employee and cocking it, causing fear in that person. A cash box containing some $800 was handed over (count 2). Count 3 occurred shortly thereafter at a TAB in Collingwood. Again the pistol was utilised and the appellant demanded cash from the proprietor. He cocked the weapon and fired it. The learned judge was satisfied that it was not fired at the victim but found that the firing must have occasioned him great fear. This incident is, of course, linked with count 4. In the armed robbery some $1,315 was handed over. Count 5 occurred on the following day and is an attempted armed robbery at a newsagency. Again the pistol was produced. The female proprietor refused the demand of money and told the appellant to go. He did so, departing in the Magna sedan. On the same day the appellant and Harvey entered the Bank of Melbourne at Lalor. Harvey left shortly thereafter. The appellant produced the pistol to a teller and threatened to shoot him. The teller handed over $6,675. He was occasioned fear, and, as the learned judge found, the same befell customers in the bank. Count 7 was a robbery shortly thereafter at a Tattslotto in Reservoir. The appellant presented the pistol at the proprietor, who handed over money. Later the appellant drove to another suburb and stole the number plates referred to in count 8. Count 9 relates to the appellant's possession of the pistol to which I have now made repeated reference.
I now turn to the arguments of counsel on this application. Mr Grant for the appellant made his economical submissions against a background wherein the Crown had conceded that his Honour had fallen into error in relation to the sentence imposed on count 8 and a fresh sentence on that count was rendered necessary. Mr Grant began by referring to matters raised on the plea. These showed that the appellant was an Aboriginal who was adopted early in his life. His adoptive mother died when he was five in traumatic circumstances for him. An unsettled life followed and at about ten years of age he became aggressive. His education was truncated. He was later taken by his adoptive father to Lang Lang for a period to have him live in more settled circumstances. He became desirous of finding his actual parents and learned that his mother had died at about the same time as his adoptive mother. He became further involved with drugs at Deniliquin with his co-offender Harvey. He attempted a TAFE course, but drug use continued.
Mr Joblin, a forensic psychologist, saw him in April 2001 and provided a report and sworn evidence to the court. His evidence, said Mr Grant, included his conclusions that the appellant was "insightful" and "intelligent". Mr Joblin also referred to a personality disorder which was responsible for returning the appellant to anti-social behaviour. He added that if the appellant's expressed enthusiasm for reform was real "the prognosis was good". Re-examined, he said he was "somewhat impressed" with the appellant's resolve and insight. Mr Grant pointed out that the appellant's prior convictions for armed robbery had not attracted heavy penalties and that the instant offences had been found by the sentencing judge to be "amateurish" and "unpremeditated". He commented that for some reason his Honour had strong views about bank robberies.
Turning to ground 1, which alleged manifestly excessive sentence, Mr Grant submitted that the appropriate sentence for count 8 should be less than two years. He further submitted that it was a "quantum leap" for the courts to go from the December 1994 sentence for armed robbery to the sentence of 10 years' imprisonment imposed on count 6. He argued that this sentence fell outside the appropriate range and was inconsistent with the judge's findings of amateurish and unpremeditated conduct. This argument led on to a further submission that the head sentence was manifestly excessive and the non-parole period fixed was "unusual and unexplained" and in itself excessive.
Mrs Quin for the Crown agreed that the sentence on count 8 should be less than two years. As to the sentence on count 6, she submitted that the sentences for the other robbery counts, as to which no individual complaint is made, placed the sentence for count 6 into its proper context. The lenient sentence of 1994 was explained by the appellant giving himself up to the police at that time. I should add that Mr Grant's written outline contended that matters raised on the plea also bore out grounds 2, 3 and 4. In particular it complained that despite Mr Joblin's evidence no finding was made as to the appellant's prospects of rehabilitation.
I now turn to my conclusions.
The Crown concession as to the sentence on count 8 necessarily produces a re-sentencing on that count, but that circumstance in itself does not necessarily mean that the total effective sentence and the non-parole period fixed should be altered. I have given anxious thought to the submissions touching count 6. That task has involved conflicting considerations which beset the courts day after day and year after year. Here we have in the appellant a repeat offender to whom the courts have given many chances. In so far as his drug problems are concerned, he has been received at Odyssey House on no less than five occasions between 1991 and 1993. On the other hand, his intensely unhappy childhood and limited opportunities are undeniable. Count 6 is a serious matter, but the appellant did plead guilty to it. In all the circumstances, I have come to conclude that the sentence imposed on that count does fall outside the range of sentences properly available to the learned judge. I believe justice would be served by the imposition of a somewhat lesser sentence on that count. As to the appellant's prospects of rehabilitation, they must, of course, be assessed and given appropriate weight. I have read Mr Joblin's evidence several times. I believe his essential opinions were qualified. Not overlooking answers he made in re-examination, I believe the core of his evidence appears at p.39. I shall add that the question asked of him on that page is in itself significant. Counsel asked:
"Do you see a spark of possibility in the future at all despite all this history that you've read about?"
Mr Joblin replied:
"If indeed that small bit of evidence I just gave, Your Honour, that that stage has been reached [that is, that the appellant had resolved it was time to stop], if that is correct, the prognosis is good. This man does have the potential. As opposed to others who are limited in every other respect of their psychological function, this man is not. He does have the potential and if he is genuine in his, the way he impresses, and that he can reject that former history, then the prognosis is good."
The "ifs" in that passage are, in my opinion, not to be ignored. Taking this evidence and other matters relevant to rehabilitation into account, I do not consider that a new sentence should make special provision in this area.
In proposing a reduced sentence for the appellant I have taken into account the circumstances of his offences, the maximum penalties provided therefor by Parliament, his background including his achievements in prison, and his work for his own people. Accordingly I would propose the following re-sentencing:
count 1 - 2 years' imprisonment;
count 2 - 5 years' imprisonment;
count 3 - 7 years' imprisonment;
count 4 - 3 years' imprisonment;
count 5 - 3 years' imprisonment;
count 6 - 8 years' imprisonment;
count 7 - 7 years' imprisonment;
count 8 - 1 year's imprisonment;
count 9 - 2 years' imprisonment.
I would further propose that the Court direct that one year of the sentence imposed on count 3, the armed robbery in which the appellant fired a shot, and one year of the sentence on count 7, the subsequent armed robbery to that on the Bank of Melbourne, be served cumulatively upon each other and cumulatively upon the sentence on count 6, making for a total effective sentence of 10 years' imprisonment. I would also propose that the Court fix a non-parole period of 8 years and make a declaration as to pre-sentence detention.
CHERNOV, J.A.:
In my view the appeal should be disposed of as is proposed by the learned Chief Justice and for the reasons given by him.
EAMES, J.A.:
I agree with the learned Chief Justice and have nothing to add.
PHILLIPS, C.J.:
The orders of the Court are:
The appeal against sentence is allowed.
The sentence imposed on the appellant in the court below is in part confirmed and in part varied. Those parts which are confirmed are -
2 years' imprisonment on count 1;
5 years' imprisonment on count 2;
7 years' imprisonment on count 3;
3 years' imprisonment on count 4;
3 years' imprisonment on count 5;
7 years' imprisonment on count 7;
2 years' imprisonment on count 9.
The sentence imposed in the court below on count 6 is set aside and in lieu thereof the appellant is sentenced to be imprisoned for 8 years.
The sentence imposed on count 8 in the court below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for 12 months.
The Court directs that one year of the sentence on count 3 and one year of the sentence on count 7 be served cumulatively on each other and cumulatively on the sentence on count 6, thus making for a total effective sentence of 10 years' imprisonment. The Court fixes a non-parole period of 8 years.
The Court declares that the period of 888 days is the period of pre-sentence detention already served by the appellant as part of the said sentence and the Court directs that the making of this declaration and its contents be entered in the records of the Court.
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