R v Hatfield
[2004] VSCA 195
•14 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 285 of 2003
| THE QUEEN |
| v. |
| ANTHONY RYAN BERT HATFIELD |
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JUDGES: | CHERNOV and VINCENT, JJ.A. and GILLARD, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 October 2004 | |
DATE OF JUDGMENT: | 14 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 195 | First Revision: 3 November 2004 |
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Criminal Law – Sentencing – Armed Robbery and Theft of firearms – Robbery committed against “soft target” – Six hour police siege after commission of robbery – Youthful offender – Aggravating circumstances subrogate offender’s youth to other sentencing principles – Cumulation – Offender’s mental situation does not warrant treating two offences separated in time as one transaction – Total effective sentence of five years’ imprisonment with minimum term of two years and nine months not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C.M. Quin | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr C.B. Boyce | Mike Wardell |
CHERNOV, J.A.:
On 29 July 2003 the appellant, Anthony Ryan Bert Hatfield, now aged 20, pleaded guilty in the County Court at Melbourne to a number of offences that he committed in the Mildura area. More particularly, he pleaded guilty to one count of burglary (count 1), three counts of theft, namely, of firearms and ammunition, a motor vehicle and a jacket (counts 2, 3 and 4 respectively). He also pleaded guilty to one count of armed robbery of a convenience store (count 5) and one count of possessing a firearm whilst being a prohibited person (count 6). In addition, he pleaded guilty to driving whilst disqualified and having unauthorised possession of ammunition. The appellant admitted 24 prior convictions arising from three court appearances in the Children's Court in Mildura, the last of which was in December 2002. These offences included arson, theft and burglary, but no custodial sentence was imposed for those offences. After hearing on 29 August 2003 a plea for leniency on the appellant's behalf, during which a report from a forensic psychologist, Mr Ian Joblin, and a report from a psychiatrist, Dr Senadipathy, were received, the learned sentencing judge sentenced the appellant on 26 September 2003 to the following terms of imprisonment: count 1 - six months; count 2 - twelve months; count 3 - four months; count 4 - seven days; count 5 - four years; count 6 - three months. His Honour directed that the whole of the sentence imposed on count 2 be cumulated on that imposed on count 5, thus making a total effective sentence of five years' imprisonment. His Honour set a minimum term of 2 years 9 months' imprisonment before the appellant would become eligible for parole. His Honour also ordered that the appellant's driver's licence be cancelled and that he be disqualified from obtaining a licence for three years. In addition, the appellant was ordered to serve one month's imprisonment for the offence of driving whilst disqualified and to pay a $500 fine for the unauthorised possession of ammunition.
On 9 October 2003 the appellant filed a notice of application for leave to appeal against sentence on the ground that the sentence is manifestly excessive. On 4 June 2004 a judge of this Court granted the appellant leave to appeal against the sentence and on 17 June 2004 he obtained leave of the Registrar to add a second ground of appeal, namely, that his Honour erred in cumulating the whole of the sentence imposed on count 2 on the sentence imposed on count 5. Before dealing with the arguments of counsel in support of these grounds, I shall set out briefly the circumstances of the offending.
The offences were committed on 5 and 7 January 2003, when the appellant was 18 years of age, in the following circumstances. Gary Pretty, a friend of the appellant's family, was a registered gun owner and, as required by legislation, kept his firearms and ammunition in a locked cabinet, which was located at his home. On 5 January 2003 the appellant borrowed a pair of bolt cutters from his grandmother, telling her, untruthfully, that he needed them to cut some chain and alter some shelving. He then drove to Pretty's house and entered it without permission through an open window (count 1). He went to Pretty's locked gun cabinet and, using the bolt cutters, cut through the padlock of it. He stole the eight firearms and a large quantity of ammunition that were stored inside the cabinet (count 2) before replacing the broken lock to disguise the theft. The appellant then returned to the house that he was renting and hid the stolen firearms and ammunition in the roof of the property.
Two days later, on the evening of 7 January 2003, the appellant stole a motor vehicle belonging to his landlady (count 3) and put into its boot one of the stolen firearms, a Winchester lever-action rifle, which he had loaded with seven rounds of ammunition. He then drove the stolen vehicle to a general store, parking it some distance away. He waited there for approximately half an hour. Then, after checking to see that the motor was running properly and taking the rifle from the boot, he got back into the car and put on gloves, sunglasses, a neck warmer and a beret in order to disguise his face. He had brought these items with him from his house. He also put on a jacket that he found in the car, but which did not belong to him (count 4), in an attempt to disguise his body shape. Having thus disguised his appearance, or so he thought, the appellant drove the car closer to the store. He waited there until he was satisfied that it was clear of customers and then entered it at approximately 8.45 p.m., holding the firearm. At this time Lisa Gray, who was 16 years of age, was standing at the cash register behind the counter and the only other person there, Jessica Wilson, who was 18 years of age, was at the other end of the store. Initially, Gray thought that the appellant was playing a trick on her, but realised that he was serious when he placed a plastic bag on the counter and demanded that she fill it with money. About this time Wilson began to scream and the appellant yelled at her to be quiet and lie on the floor, which she did. After Gray had opened the cash register the appellant instructed her to sit on the floor as well. He then half-cocked the rifle, which produced a clicking sound, in order further to frighten the two girls, which it did, leaned over the counter, filled his bag with $160 in cash, although leaving some cash in the till, and left the store. The appellant was seen carrying the firearm outside the store by a passing truck driver.
The appellant used some of the stolen money to purchase sundry items, including two violent videos, and then drove home where he found the police were waiting for him. He sped off, but later abandoned the car and travelled back to his house on foot, entering it through the unlocked back door. A six-hour siege commenced, during which the appellant spoke with a police negotiator over the telephone and, in the interim, telephoned some of his friends. The siege ended at approximately 3.30 a.m. on the following morning, when the appellant emerged voluntarily, still carrying the loaded rifle, and was arrested by waiting police officers. The premises were searched by police, who found the remaining stolen weapons, ammunition and money.
During his police interview, the appellant said that he stole the firearms with the intention of committing suicide, but he never explained why he required eight firearms for that purpose. It is apparent that he changed his mind in the following days. He said he committed the robbery because he needed the money - at the time he had numerous unpaid fines and a Centrelink debt of $5,000.
It is necessary to set out briefly the appellant's personal circumstances. As I have said, he was aged 18 years at the time of the offending and it is plain from the material that was before the learned sentencing judge, and which he generally accepted, that at the time of the offending the appellant had mental and emotional difficulties. He had suffered from depression and demonstrated suicidal tendencies since he was approximately eight years of age and apparently tried to commit suicide on a number of occasions. He was brought up by his mother in a deprived family setting. She treated him violently, frequently assaulting him and sometimes stabbing him. He never knew his father and did not have a role model or anyone who could provide him with emotional security and guidance. It is therefore not surprising that he performed badly at school, from which he was ultimately suspended. It was at this time that he joined the Army Reserve. The psychiatric assessment, for which his Honour called before sentencing the appellant, did not disclose that he was suffering from any serious psychological illness. It is to be noted, however, that Mr Joblin reported that the appellant's declared interest in weaponry, violent videos and the Army "raises issues of some concern, if not alarm", and that the appellant had reported feelings of power when he was in possession of the stolen guns. Mr. Joblin concluded that this feeling, in combination with the appellant's generally depressed state, "provided the basis for the armed robbery". Dr Senadipathy, however, in his report of 4 September 2003, stated that there was no indication that the appellant was obsessed with firearms. He went on to say that the offences committed by him were not acts of "impulsive aggression" but rather planned and premeditated acts.
Whilst in custody the appellant had no visits but received treatment for his emotional and mental condition, apparently with positive results. He completed a number of courses aimed at self-improvement, evidence of which was put before the learned sentencing judge. The material tendered to his Honour also shows that before the offending conduct in question the appellant was involved as a volunteer in a number of community activities in civic areas, and that as an Army Reservist he served for six months as a peacekeeper in East Timor. In the result, the evidence before his Honour as to the appellant's rehabilitation was generally accepted by him as showing that there were promising signs in that regard, warranting a substantial period of parole.
On the other hand, as I have said, the appellant had a number of prior convictions in the Children's Court involving offences of dishonesty and wanton destruction of property, including 13 counts of arson, although, as I have already noted, he had not hitherto been sentenced to a period of incarceration.
Mr Boyce for the appellant first argued that the four-year sentence of imprisonment imposed for armed robbery (count 5) and the total effective sentence of five years' imprisonment are manifestly excessive, having regard to the powerful mitigating circumstances in this case. Counsel submitted that the relatively short non-parole period reflected his Honour's recognition of the appellant's youth as a mitigating circumstance, but the head sentence nevertheless remained manifestly excessive given that it must be assumed that the appellant is to serve every day of that period. Whilst acknowledging that the appellant had previously offended, Mr Boyce said that this was explained, at least in part, by his terrible upbringing. Counsel relied on the appellant's youth as being a strong mitigating factor and submitted that the impugned sentences reflect other sentencing considerations that must have been favoured by his Honour and which negated the mitigating force arising out of the appellant's youth. Counsel also pointed to cases in which this Court has recognised that adult prison is likely to have a detrimental effect on a youthful offender, particularly one who has had no such experience, with detrimental flow-on consequences to the community. Reference was made to R. v. McCormack[1] and R. v. Teichelman[2]. It was said that the total effective sentence and the sentence on count 5 are a manifestation of the judge's insufficient recognition of the corrosive effect of a prison term on a youthful offender.
[1][1981] V.R. 104 at 110.
[2][2000] VSCA 224 at [20] per Batt, J.A.
It may be accepted that, ordinarily, an offender's youth is a very powerful mitigating circumstance that calls for rehabilitation to be in the forefront of the factors that govern the sentencing disposition. But it should be said that the offender's youth and the prospect of rehabilitation may be overriden by other sentencing considerations that point to the need to impose a custodial sentence. The weight to be given to youth as a mitigating factor must depend on the circumstances of the case. Thus, in R. v. Mills[3] Batt, J.A. pointed out that the youth of an offender is "a primary consideration" (my emphasis) for sentencing purposes and in R. v. Bell[4] the same learned judge again emphasised[5] that the general propositions stated in Mills about the significance of the youth of the offender for sentencing purposes "are just that - general propositions". See also Director of Public Prosecutions v. SJK.[6] And in R. v. Teichelman Batt, J.A., with whom Phillips, C.J. and Buchanan, J.A. agreed, noted[7] that, notwithstanding that the youth of an offender is a powerful mitigating factor, it may, in the face of other powerful considerations, be subjugated to other sentencing principles or purposes. For example, where general deterrence must be emphasised in the punishment of an offence, as, for example, in culpable driving, there may be correspondingly less scope for leniency on account of the offender's youth.
[3][1998] 4 V.R. 235.
[4][1999] VSCA 223.
[5]At [14].
[6][2002] VSCA 131 at [60] per Phillips, C.J., Chernov and Vincent, JJ.A.
[7]At [20].
It is relevant to note that the learned sentencing judge in this case was fully aware of the relevance of the appellant's youth to the sentencing disposition, saying that the appellant's young age meant that "rehabilitation must play a significant role in the sentencing process". Moreover, it seems to me that this view was put into effect by the relatively short non-parole period imposed by his Honour. Nevertheless, his Honour went on to say "this must be tempered by the fact of your prior court appearances and the seriousness of the offending behaviour …". For completeness, I mention that in referring to the psychiatric and psychological assessment reports (to which I have referred) his Honour said "[o]n the basis of [these reports], I accept that at the time of your offending you were in a somewhat disturbed psychological condition and I accept this condition impacts on your moral culpability for your offending".
Importantly, the aggravating factors in this case were significant so that, as I will explain, general deterrence assumed considerable importance in the sentencing disposition. The relevant offences - armed robbery and theft of the firearms - are very serious offences, as is reflected by the maximum custodial penalties prescribed by Parliament - 25 years' imprisonment for armed robbery and 10 years' imprisonment for theft. Moreover, the relevant offending conduct was carried out in aggravating circumstances. Both of the offences were planned and premeditated - in the case of theft of the firearms, it involved the appellant lying to his grandmother and stealing from a family friend, and in the case of the armed robbery, it involved stealing a car. The armed robbery seems to have been carried out purely for financial gain and was not, as is so often the case, drug or alcohol induced. Moreover, the armed robbery was carried out in a calculated, brutal and cowardly manner, demonstrating the appellant's complete disregard for the effect that his conduct might have on his vulnerable young victims. It is fortunate that no one was killed or hurt during this offence, and the detrimental impact of the appellant's offending conduct on the young victims is starkly illustrated in their victim impact statements. The offending involved, as I have explained, the use by the appellant of a powerful, loaded rifle in order to terrorise the young girls into submission. He waited to enter the premises until they were in a most vulnerable situation and used the appearance of the firearm and the audible movement of its cocking device to cause them extreme fear.
For reasons explained in R. v. Kittikhoun[8], a decision of this Court that was handed down this morning, which I will not repeat here, the principle of general deterrence assumes a particular significance for sentencing purposes in relation to the crime of armed robbery in a case such as this. As was noted in that case, this Court has recognised on a number of occasions that armed robberies carried out against defenceless victims who seek to conduct their businesses outside normal hours are all too prevalent and the community is entitled to look to courts for protection against such offending and to expect that condign punishment will be imposed in proper cases so as to deter others from engaging in like conduct.
[8]R. v. Kittikhoun [2004] VSCA 194.
Mr Boyce has said everything that could be said in support of ground 1 and I have given his written and oral submissions anxious consideration because the appellant's youth, prospects of rehabilitation and his remorse are powerful mitigating factors and also because I recognise the detrimental consequences that a custodial sentence in an adult prison may have on him. But in view of the very serious aggravating circumstances of this case, I am not persuaded that it was not properly open to this experienced sentencing judge to impose the sentence of four years' imprisonment in respect of the armed robbery count and to impose a total effective sentence of five years' imprisonment so as to reflect the total criminality of the appellant's conduct. I consider that these sentences are not beyond the range of sentences properly available.
In the circumstances, I consider that ground 1 should fail.
Counsel submitted under cover of ground 2 that there were two reasons why his Honour erred in making the impugned cumulation order. First, it was said, the two relevant offences were so closely related that they can be properly said to arise out of the one transaction, and thus require a measure of concurrency; and, more particularly, it was claimed that the offences should be treated as the one transaction because they arose out of the appellant's mental situation at that time. In that context it was pointed out that, by way of contrast, the sentence imposed in relation to count 1 - an offence which preceded the theft - was left wholly concurrent. It was next said that, in the circumstances, the total cumulation of the sentence on count 2 offends the principle of totality.
Forceful though these arguments appear to be, I cannot accept them. As to the first reason stated by counsel, on the appellant's own case to the police, the theft
of the firearms was not relevantly related to the armed robbery. The two transactions were quite separate in nature and kind and were separated by a period of two days. Moreover, I think there is little to support counsel's claim that the two sets of offending conduct were in substance part of one transaction because of the appellant's mental condition. The offending was deliberate, both as to the taking of the weapons and the armed robbery. As to his Honour not cumulating the sentence on count 1, it is apparent that his Honour, unsurprisingly, treated the burglary as part and parcel of the theft of the firearms. It may have been more appropriate for his Honour to have cumulated some part of the sentence on count 1 in order to better explain how the total sentence reflects the totality of the criminal conduct. But I do not consider that his Honour's decision not to follow this course, but to cumulate the whole of the sentence on count 2, vitiated his wide discretion in ordering cumulation.[9] This leaves the question whether the cumulation ordered offends the principle of totality or imposes an inappropriately crushing sentence. In my view, given the circumstances to which I have referred, the cumulation does not produce a sentence that breaches the principle of totality. It cannot be said, I think, that the aggregate sentence is not "just and appropriate".
[9]See, for example, Attorney-General v. Tichy (1982) 30 S.A.S.R 84 at 92–93.
For these reasons, I consider that ground 2 must fail and it follows that in my view the appeal should be dismissed.
VINCENT, J.A.:
I agree, and for the reasons advanced by the presiding judge.
GILLARD, A.J.A.:
I agree in the reasons given by Chernov, J.A. and the order that he proposes.
CHERNOV, J.A.:
The formal order of the Court is that the appeal is dismissed.
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