R v Harrison
[2008] VSCA 65
•24 April 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 300 of 2007
| THE QUEEN |
| v |
| RICKY HARRISON |
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JUDGES: | BUCHANAN and ASHLEY JJA and FORREST AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 April 2008 | |
DATE OF JUDGMENT: | 24 April 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 65 | |
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Criminal Law - Appeal - Sentence - Armed robbery - Offence committed while on bail for unrelated assault - Whether sentence manifestly excessive - Whether totality principle properly applied - Whether error in determining appellant's prospects of rehabilitation.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Ms A Cannon Solicitor for Public Prosecutions |
| For the Appellant | Mr R F Edney | Victorian Aboriginal Legal Service Co-operative Ltd |
BUCHANAN JA:
In my opinion the appeal should be dismissed for the reasons stated by Forrest AJA.
ASHLEY JA:
For the reasons given by Forrest AJA, I agree that this appeal should be dismissed.
FORREST AJA :
Introduction
The appellant pleaded guilty to one count of armed robbery in the County Court arising out of an offence committed by the appellant at Hastings on 24 May 2006.
The appellant was sentenced on 12 September 2007 to three years’ imprisonment. His Honour ordered that the sentence be cumulative upon a sentence of imprisonment of two years and six months already being served by the appellant under an earlier sentence imposed in November 2006 with a non-parole period of 15 months being set. Allowing for pre sentence detention, only one month remained in September 2007 before the appellant was eligible for parole. His Honour had been minded to fix a non parole period of 16 months in respect of this offence; consistently with that intention he fixed a fresh single non-parole period of 17 months in respect of all sentences imposed upon the appellant as required by s 14 of the Sentencing Act.
The appellant now appeals, by leave, on the grounds that the sentence was manifestly excessive in all the circumstances and that the sentencing judge erred in two specific findings.
The appellant’s background
The appellant was born on 15 November 1984 and is now 23 years of age. He was placed in foster care soon after his birth. He is of Aboriginal descent and, despite the love and care of his foster parents, has had a very difficult life. His biological parents had little to do with him during his formative years.
The appellant was educated to Year 7, after being expelled from school at the age of 13. He had extreme behavioural difficulties at school and was diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’). A psychological assessment when he was nearly 13 years of age illustrates the difficulties that he encountered at that tender age. At that age he was described as being disruptive, abusive and caught up in dangerous incidents involving fighting and threatening behaviour to other students and teachers. Testing at that age revealed a low average IQ. Given the diagnosis of ADHD it was necessary for him to be medicated. He was described by Dr Walton, psychiatrist, in 2005 as being of ‘dullish intelligence’ but not intellectually disabled.
After leaving school at the age of 13 the appellant undertook some desultory cash-in-hand labouring and gardening jobs. Otherwise he has not worked over the past ten years. He lived with his foster parents initially in Ferntree Gully and then in Hastings.
At a very young age the appellant developed problems with both alcohol and drugs. He has been diagnosed as being both drug and alcohol dependent and the vast majority of his offences (if not all) have occurred whilst under the influence of these substances.
After leaving school the appellant developed what the sentencing judge referred to as ‘a disturbing criminal history’. The appellant had at least six court appearances prior to this appearance and as the sentencing judge summarised, ‘sustained 32 separate convictions for street offences, assault, recklessly causing injury (on four occasions), intentionally causing injury, threatening to kill (in 2005), three counts of theft and carrying a dangerous article or carrying a regulated weapon’.
The following matters are of significance.
On 11 October 2005, the appellant was convicted in the Magistrates’ Court and placed on a community based order (‘CBO’) for offences that included causing injury intentionally, causing injury recklessly and making a threat to kill. The CBO contained various conditions, including conditions designed to address his abuse of alcohol and drugs, requiring him to submit to medical, psychological or psychiatric assessment and treatment, and to be involved in programs to reduce re-offending.
Three months after the CBO was made, on Boxing Day 2005, the appellant was involved in a violent incident when in the company of another man and armed with a wooden bat he broke into a unit where his ex-girlfriend and her male partner were living. After entering the house he used the wooden bat to strike the male to the forehead and then to the back of the head. He had to be forced out and in a struggle outside the unit again struck the victim to the head. He followed the victim threatening him but no further attacks occurred. He was held in custody until 28 March 2006 when he obtained bail.
Then on 24 May 2006 (less than two months after being released on bail) he committed the subject offence – to which I will turn in a moment.
In November 2006 he appeared before a judge of the County Court in respect of the Boxing Day incident. He had been charged with one count of aggravated burglary and one count of recklessly causing serious injury. He was imprisoned on the count of aggravated burglary for a period of two years and on the count of recklessly causing serious injury for 12 months. He was sentenced to an effective term of two years six months with a non-parole period of 15 months.
At the time of his sentencing on 12 September 2007 for the subject offence the appellant was eligible for parole on 10 October 2007 in respect of the Boxing Day incident.
The subject offence
On 24 May 2006, in the company of a female friend, the appellant attended the Coles Liquorland store in Hastings. He was affected by alcohol and cannabis. Two members of the staff were working in the sales area. The appellant removed a bottle of bourbon from the shelf and placed it in the waistband of his pants.
His actions were observed by a member of the staff and when he approached the counter the male manager asked him to remove the bottle from his jacket. After being abusive to the manager he opened his jacket to clearly reveal a black handled knife with a curved silver blade tucked into his pants. The manager, out of fear, apologised for accusing the appellant of theft stating that he (the manager) was wrong. After leaving the store the appellant returned and made a number of threats to staff members not to call the police.
It is relevant to note that the knife was not wielded or used in any intimidatory way; nor was it displayed for any length of time - although it can be readily concluded that its presence in the circumstances of the theft of the bottle was highly intimidating to the staff.
At the plea the Crown expressly disavowed reliance upon the existence of verbal threats to the staff by the appellant to use the knife. The sentencing judge, however, took the view that the descriptions by the staff victims that such threats had been made were consistent with his viewing of the video of the incident. Nevertheless he did not act on his view of the matter, given a concession by the Crown that the CCTV video did not support such a finding.
The store manager stated ‘I was very worried. I don’t like to use the word scared but my heart was pounding’. I have also watched the CCTV video. It is abundantly clear that the appellant acted in an aggressive and frightening manner to the manager both at or around the time of displaying the knife and when he returned to threaten the staff again.
The appellant made a ‘no comment’ record of interview; he contested the committal and cross-examined the members of the store staff. The plea of guilty was entered on the day that the trial was listed to commence in the County Court.
As I have noted, at the time he was on bail in respect of charges arising out of the Boxing Day incident. He was also the subject of the CBO.
The sentencing judge’s reasons
The sentencing judge’s reasons are detailed and comprehensive.
In sentencing the appellant to three years’ imprisonment the sentencing judge took account of the events surrounding the incident at the supermarket, although he reluctantly accepted that no direct threats of harm had been made by the appellant to the staff. He accepted, correctly, that there was understandable fear on the part of the staff members.
The sentencing judge set out the circumstances of the offence, the appellant’s criminal history and his background and personal circumstances. He dealt comprehensively with the facts surrounding the Boxing Day incident and the sentence imposed by the sentencing judge in that case.
In relation to this offence the sentencing judge identified the following mitigating factors:
(a)The appellant’s deprived and dysfunctional background.
(b)The appellant’s youth.
(c)The appellant’s plea of guilty.
(d)The appellant’s low intellect and diminished intellectual functioning.
(e)The circumstances surrounding the offence and particularly his acceptance that the appellant did not go into the store intending to commit an armed robbery and that the weapon was not removed or brandished.
(f)Prospects of rehabilitation which he considered poor, but not non-existent having regard to specific efforts whilst incarcerated, including obtaining a number of TAFE certificates and undertaking courses relevant to his alcohol and drug addiction problems.
The sentencing judge also took into account the following considerations:
(a)That at the time of committing the offence the appellant was affected by alcohol and drugs and was out of control, abusive and agitated.
(b)That the appellant entered the store carrying the knife.
(c)That the offence of armed robbery had to be treated as a very serious offence.
(d)That the offence was committed whilst the appellant was on bail for the Boxing Day incident and therefore was relevant to the assessment of the appellant’s prospects of rehabilitation and demonstrated little regard for the law.[1]
[1]The sentencing judge was reinforced in his view as to the relevance of this matter by the provisions of s 16(1A)(e) and s 16(3C) Sentencing Act1991.
Grounds of appeal
The appellant relies upon the following grounds:
(a) The total effective sentence, individual sentence and the non-parole period is manifestly excessive.
(b) The learned sentencing judge erred by failing to properly apply the principle of totality.
(c) The learned sentencing judge erred in finding that the appellant’s prospects of rehabilitation were poor.
Analysis
Prospects of rehabilitation
I am not persuaded that his Honour was in error in characterising the appellant’s prospects of rehabilitation as poor. Indeed his Honour spent considerable time considering the question of rehabilitation and steps taken by the appellant which may have placed him on the road to such rehabilitation. He also noted, correctly, statements by this Court in relation to difficulties facing a sentencing judge where a faint hope of rehabilitation has been detected.[2] Characterising the appellant’s prospects of rehabilitation as poor was consistent with his view that there was a faint hope of rehabilitation. Such a conclusion was clearly open, given the appellant’s past history. His completion of the course and programs at the prison was no more than an encouraging sign. Indeed his Honour accepted that it was positive that the appellant had engaged in the courses whilst incarcerated – it was this that led the sentencing judge to conclude that there was a hope of rehabilitation and to fix a lower than normal non-parole period.
[2]DPP v Roe [2005] VSCA 178.
True it is that imprisonment imposed by the November 2006 sentence was the appellant’s first period of direct imprisonment and the prospect of rehabilitation after that experience needed to be borne in mind by the sentencing judge, as counsel for the appellant argued. However that proposition needs to be balanced against the fact that the appellant had spent nearly three months in custody after the Boxing Day incident and then committed this offence whilst on bail in relation to that incident. Moreover, the CBO granted by the Magistrates’ Court in October 2005 had attached to it conditions relating to drug and alcohol counselling and treatment – none of which appear to have achieved any result. Whilst it is to be hoped that the experience of jail will awaken the appellant as to what his life may hold in the future if he fails to diverge from the course he set prior to his imprisonment, I can detect no error in the sentencing judge’s conclusions as to rehabilitation.
Principle of Totality
The appellant asserts that the sentencing judge failed to apply the principle of totality.
In Postiglione v R McHugh J set out the principle:[3]
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
[3](1997) 189 CLR 295, 308.
It is settled that the principle applies to both the head sentence and the non-parole period. It also applies where a sentence has been imposed by a different court to that which later sentences the offender.[4]
[4]Mill v The Queen (1988) 166 CLR 59.
In R v Piacentino[5] Eames JA said:
The totality principle, then, is concerned to ensure that sentencing for an offender facing multiple offences is, as McHugh J held in Postiglione, a “just and appropriate measure of the total criminality involved:”. As Fox and Freiberg observe, the principle will generally apply, unless denied by statute. Absent legislative prescription it would seem, therefore, that the totality principle would have application to an offender who was liable to serve an additional sentence by virtue of breach of parole. (Footnotes omitted)
[5]R v Piacentino; R v Ahmad (2007) 15 VR 501 [37].
Whilst there is no specific reference to the principle of totality in his Honour’s reasons it is clear that his Honour was alive to the question of the cumulative effect of this sentence upon that of the sentence imposed in November 2006. Indeed he concluded:
[T]here is not good or sufficient reason to depart from the clear terms of ss 16(1A)(e) and 3C), such that the sentence I intend to impose will be served cumulatively on the sentence you are currently undergoing. I have reached this conclusion for the following reasons: because of the seriousness of your offence; the fact that it was committed while you were on bail for other serious offences; that the other serious offences were quite separate from the present matter having been committed in December 2005; that your offence here was committed following your receipt of the benefit for the particular courses in prison as to alcohol and drug addiction which I have set out; and finally because your offence was committed whilst you were under the influence of alcohol and drugs.
His Honour had previously set out the circumstances surrounding the Boxing Day incident and considered the reasons of the judge who sentenced the appellant in November 2006.
I am not persuaded that his Honour did not consider the totality of the criminality involved in both offences. The mere fact that he did not address the principle in terms does not bespeak error.
Even if I took the view that his Honour had erred in not taking into account the totality principle it would not be determinative of the disposition of this appeal.
In R v Palmieri[6] Brooking and Hayne JJA said:
In our opinion the exercise of the sentencing discretion has quite clearly miscarried by reason of the matters we have already mentioned, and it is not necessary to consider directly any of the other grounds of appeal, although it will be necessary to say something about the questions which they raise in considering whether a different sentence should have been passed. For unless we conclude that a different sentence should have been passed, we must dismiss this application.[7]
[6][1998] 1 VR 486, 490.
[7]See also R v Wright; R v Gabriel [2008] VSCA 19 [46], Crimes Act 1958 s 568(4).
Manifestly excessive sentence
Armed robbery is a serious offence and carries a penalty of 25 years’ imprisonment. This incident, I accept, is at the low end of such an offence – as was agreed by the prosecutor at the trial who described three years imprisonment as ‘the absolute upper worst case scenario’. The incident at the cash register was short in duration. However the appellant was aggressive and threatening towards the staff. True it is that there was no physical violence and the sentencing judge accepted, albeit reluctantly, that there was no threat of physical violence. Any glimpse that was obtained by the staff of the knife was short lived and it was not flourished or used to menace the staff in an aggressive fashion. Nevertheless the offence was committed whilst the appellant was on bail and the subject of a CBO. Given these facts and the appellant’s prior convictions it was inevitable that he would receive a significant period of imprisonment despite his youth and deprived background.
It is not the task of this Court to decide for itself the penalty that should have been imposed if the case had come before us. Rather, it is to determine whether specific error exists, or, alternatively, whether the sentence is manifestly excessive so as to require appellate intervention.[8] Whilst I regard the sentence of three years’ imprisonment as being at the higher end of the available range to the sentencing judge it is not, in my view, out of proportion to the offence taking into account the sentencing considerations which the judge identified and then took into account. The sentence is not manifestly excessive in the circumstances.
[8]See Dinsdale v The Queen (2000) 202 CLR 321 [6] and [58]; Lowndes v The Queen (1999) 195 CLR 665, 671-672.
Nor does the sentence, when taken into account with the sentence imposed in November 2006, offend the totality principle. The appellant’s criminality overall needs to be viewed in the light of the total sentence imposed. The total sentence is effectively five years six months’ imprisonment with a non-parole period of two years and seven months. I do not regard that sentence as being disproportionate to the totality of the criminality of the appellant. The sentence does not fall foul of the totality principle. It was within the discretion of the sentencing judge.
Disposition of the appeal
In my view the appeal should be dismissed and orders made accordingly.
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