R v Koumis
[2000] VSCA 210
•24 October 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 112 of 2000
| THE QUEEN |
| v. |
| CON KOUMIS |
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JUDGES: | PHILLIPS, C.J., BROOKING and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 October 2000 | |
DATE OF JUDGMENT: | 24 October 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 210 | |
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Criminal law – Appeal against sentence – Offences of false imprisonment and robbery – Hijacking of truck containing a valuable consignment of fish and imprisonment of driver – Grounds of manifest excess and disparity of sentence – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms. S.E. Pullen | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. T.E. Wraight | Balmer & Associates |
PHILLIPS, C.J.:
The applicant, who is aged 22, pleaded guilty in the County Court at Ballarat on 18 April last to a presentment containing a count of false imprisonment (count 1) and a count of robbery (count 2).
These offences, which carried maximum penalties of 10 years and 15 years' imprisonment respectively, were committed at Linton on 21 March 1998.
The applicant admitted a prior court appearance in the Children's Court at Sunshine in October 1994, when he was placed on a good behaviour bond for offences of burglary and theft.
Four other persons pleaded guilty to the same presentment. They were Dwayne Peter Smith, Kristin Lee Sharp, Michelle Mary Harris and Lisa Marie Maloney. Smith had prior convictions for burglary and obtaining a financial advantage by deception incurred in 1980 and 1982. Sharp had 42 prior convictions of which 25 were for dishonesty and six for violence. Sentences for these offences were by way of community-based orders, suspended sentences of imprisonment and fines. Harris had prior convictions for drug related offences and Maloney prior convictions for dishonesty and drug related offences.
After hearing pleas for leniency, the learned judge reserved his decision as to sentences until 28 April last and on that day sentenced Smith to a total effective sentence of four years' imprisonment as to which a non-parole period of two years and six months was fixed; Sharp received a total effective sentence of two years' imprisonment with a non-parole period of six months; Harris and Maloney received total effective sentences of 12 months' imprisonment wholly suspended for two years.
The applicant received a sentence of 12 months' imprisonment on count 1 and three years' imprisonment for count 2, making for a total effective sentence of three years' imprisonment. His Honour fixed a non-parole period of 12 months.
The learned judge placed the applicant as second in order of culpability behind Smith and Sharp was placed third in that order behind the applicant.
The applicant later lodged notice of application for leave to appeal against sentence pleading that the sentence was in all the circumstances manifestly excessive and later the learned Registrar allowed a second ground in these terms:
"The sentence imposed by the learned sentencing judge infringes the principle of parity."
On the hearing of this application, Mr Wraight limited this ground to a comparison between the sentence of the applicant and that of Sharp.
It is now necessary to set out in summary form the facts of this matter.
On 20 March 1998 plans were developed between the five offenders as to the interception and robbery of a Melbourne-bound truck carrying live crayfish. Smith rented a vehicle at Portland on the same day and the others another utility vehicle at Ballarat on 21 March in order to effect the transfer of the stolen crayfish. On 20 March there was a reconnoitre of the site of the intended offence by several of the offenders including the applicant. On the following day the original plan was abandoned and another adopted. On 20 March the victim truck driver, employed by Mt Gambier Crayfish Processors, left his home late in the evening and took on board his employers' truck a consignment of crayfish - nearly 1,000 kilograms - with a retail value of some $40,000. He set out for Melbourne along the Glenelg Highway and at about half-past three on the following morning was near Linton, a small village 30 kilometres south-west of Ballarat. He saw flashing headlights behind him and thought this was a warning that something was wrong with his truck. He stopped and got out. One of the offenders called out to him that there was something hanging down from the back of his truck. Their vehicle's headlights obscured his vision. He bent down to inspect his truck and a bag was put over his head and taped on. His arms were pinned and his wrists then taped together. He was put in the sleeping area of his truck. He was told to behave himself and he would not get hurt. He was terrified. The truck was then driven to another secluded location and emptied of crayfish into two waiting vehicles previously left there by the offenders. The driver was then ordered into the back of his truck, the hood was removed but he was told to keep his face down. The tape was removed and the truck shifted to an even more secluded area. He was told to remain face down for two hours and to tell the police that four Asians did the robbery or the offenders would come back and "get him". He was left in the truck in a terrified state. As it happened, the truck had not been locked and the driver was able to return to the highway where a passing motorist took him to the police. The driver was not physically injured, but was nervous, shaken and terrified. A victim impact statement before the judge evidenced post-traumatic stress syndrome and associated anxiety and depression continuing into this year.
Other than Smith, all the offenders made full admissions to the police. Smith initially told the tale that he was told to do the robbery by a Melbourne fish supplier to whom he had owed money and to whom in fact the crayfish were delivered. The police did not accept this account.
It should be noted that on 8 October 1999 in a hand-up brief proceeding the applicant pleaded guilty to the charges on the presentment.
I now turn to the submissions of counsel.
Mr Wraight began his submissions by addressing ground 2, referring the Court to the well-known authority of Postiglione v. The Queen[1]. Although no ground challenged the factual findings of the learned judge, counsel contended, within the scope of ground 2, that the applicant should not have been characterised as more culpable than Sharp. He made the following comparisons.
*Sharp's prior convictions were much more numerous than those of the applicant and were more relevant.
*Sharp was involved in placing the bag over the victim's head and attempting to tape his wrists. There was no evidence that the applicant exerted any physical force on the victim at all.
*Sharp suffered a mild intellectual disability while the applicant suffered from Thalassaemia Major, the treatment of which includes blood transfusions and treatment with a subcutaneous pump having to be used six nights a week. Complications of this condition included a splenectomy, hepatitis C, pubertal delay and a number of psychological problems. Both the applicant and Sharp co-operated with the police and pleaded guilty at an early stage. At the time of their offences the applicant had just turned 20, while Sharp was aged 27. In fact the applicant, said counsel, was the youngest of the five offenders.
[1](1997) 189 C.L.R. 295.
Counsel also laid store on the evidence which was before the judge by way of reports from Mr Joblin, a forensic psychologist, and a Ms Tassigiannakis, a social worker, that the applicant would attach himself readily to anyone who would offer him friendship - in this case, it was contended, the principal offender, Smith.
Completing his submissions on this ground, Mr Wraight submitted that the disparity between the two sentences was manifest and such as would engender a justifiable sense of grievance on the part of the applicant which would be shared by an objective observer.
As to this ground, Ms Pullen, for the Crown, pointed out that the sentencing judge had heard evidence from the informant detailing his assessment of the role of each offender in the offending. That evidence placed the applicant ahead of Sharp. No issue was taken with it and the applicant's counsel did not cross-examine. Counsel took us to the judge's findings in relation to the applicant. These included the following:
" ... You were enthusiastically involved in the planning of the robbery and the evidence reveals that you were very active in the promotion of and the organising of the offence. I accept the submission of the learned prosecutor to the effect that you were the second in the order of culpability for your part in the planning and organising of, and the subsequent commission of the offences." (p.141).
These findings, Ms Pullen submitted, were plainly open to the judge, for he had before him that the applicant had attended what was described as a "dry run" on the night prior to the offence; the applicant had approached co-offenders and had been a party to enlisting Lisa Maloney; the applicant received money for his involvement; he was involved in the disposal of some of the lids from the crayfish bins; he was present at the scene ready to assist. It followed, so the argument went, that there was a logical explanation for the two different sentences imposed.
As to ground 1, Mr Wraight laid store on the applicant's plea of guilty and its timing; his youthfulness at material times; his lack of significant prior convictions; his prospects of rehabilitation and his serious illness and the hardships he would face in the prison system. It must be, it was submitted, that insufficient weight had been given to these matters and that, correspondingly, too much weight must have been given to the perceived role the applicant played in the commission of the offences.
In response, Ms Pullen submitted the sentence was within range, giving full weight to the applicant's personal circumstances. The offences were serious and were properly regarded as such by the learned judge.
I now turn to my conclusions.
With respect to ground 1, there arise the questions whether the disparity between the relevant sentences is manifest or merely arguable and whether, on the evidence, a logical explanation or explanations exist for the two different results. I shall deal first with the offences themselves and their attendant circumstances. In my opinion, the finding that the applicant was second in order of culpability after Smith and before Sharp was one which was plainly open to the learned judge on the evidence.
So, too, were the findings to which I have earlier adverted and which related to the planning, promotion and organising of the offence.
I now turn to the personal circumstances of the two offenders.
It is true that the applicant did not have the criminal history of Sharp. But it was for his Honour to view Sharp's criminal history in the light of the whole of the evidence touching him. That included the evidence of a Mr Sullivan, a psychologist, who offered the opinion that Sharp was incapable of effective or logical decision making. It was no doubt striking that Sharp, despite the number of prior convictions, had never actually been in prison beyond a week. It is therefore unsurprising that in Sharp's case the judge found that the element of general deterrence ought to be tempered to some extent because of Mr Sullivan's evidence. The respective criminal records had been canvassed before his Honour. The judge also noted, referring to Mr Joblin's report, that the applicant was of reasonable intelligence and insight.
It is also true that the evidence showed that it was Sharp who placed the bag over the victim's head, but the applicant, the judge must have inferred, was present ready to assist if the victim resisted. He did not do so.
Otherwise, the reasons for sentence show that his Honour acknowledged both offenders' pleas of guilty and their admissions to the police together with their respective ages. Their respective difficult backgrounds and personal problems were thoroughly canvassed.
It is sufficient to say that in my view there were between the cases of the applicant and Sharp significant differences such as would both explain and warrant their different sentences. This ground fails.
As to ground 1, it is for the applicant to show that the sentence imposed lay altogether outside the range of those properly available to the learned judge. Viewed in isolation, the unhappiness, pain, inconvenience and personal problems cast upon the applicant by reason of his serious illness presented a sad picture indeed in the County Court. To my mind, the learned judge was very conscious of this, but, as was his duty in fairness to counsel for the applicant, he sought to remind that consideration of the applicant's offending had also to be made. For, counsel having thoroughly detailed the applicant's personal problems, his Honour rejoined: "No, in the ultimate it's his participation in it that's the troublesome factor." (p.54).
Thereafter, in exchanges with counsel, the learned judge, to my mind, made it clear that, although he considered a sentence of imprisonment was appropriate, he then held no final view as to total suspension, which had been sought. There then followed, as I have earlier indicated, an adjournment of some ten days before sentence was pronounced. It must be that during that period his Honour gave the applicant's sentence the most careful consideration.
I am unpersuaded that the applicant's sentence did lie outside the range properly available to the learned judge. After giving full weight, as I believe he did, to matters personal to the applicant, the judge also had to consider the applicant's role in the offences and their nature. As to the robbery count, his Honour said to all the offenders, "The gravity of the crime of robbery committed by you all on this occasion cannot be underestimated." I respectfully agree. The judge went on to point out that the robbery offence was committed in company in the hours of darkness and, in an associated way, in lonely spots. Its immediate and subsequent effects on the victim were also serious. Regard had to be had to the maximum penalty fixed by Parliament. In my opinion, this ground fails, and I would propose that this application be dismissed.
BROOKING, J.A.:
I agree.
BATT, J.A.:
I also agree.
PHILLIPS, C.J.:
The order of the Court is that the application for leave to appeal against sentence stands dismissed.
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