R v Leoni

[1999] VSCA 218

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 59 of 99

THE QUEEN

v.

HUNTER BATISTA DUNCAN LEONI

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JUDGES:	TADGELL, ORMISTON and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 1999
DATE OF JUDGMENT:	20 December 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 218

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Criminal law -  Sentencing – Attempted armed robbery – Intentionally causing serious injury – Recklessly causing injury – Middle-aged man of good character in poor health – Aberrant behaviour – Whether head sentence warranting appellate intervention – Principles applicable to non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Miss R.E. Carlin	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. D.M. Salek, Q.C.	Slade & Parsons

TADGELL, J. A.:

1. I agree with Callaway, J.A.

ORMISTON, J. A.:

1. Having had the benefit of reading in draft form the judgment of Callaway, J.A. on this application, I have been persuaded, after considerable hesitation, that the application should be allowed and the appellant re-sentenced in the manner proposed in that judgment.  In substance I agree with the reasons he has stated.

1. I would add only these matters.  I am not sure why the learned sentencing judge gave so much heavier a sentence for the attempted armed robbery than for the intentionally causing serious injury count which he described, correctly in my opinion, as a "violent, brutal and merciless" attack, unless it be that he was attempting to give effect to that very difficult High Court decision in Pearce v. The Queen (1998) 194 C.L.R. 610. The factors to which Callaway, J.A. refers as persuading the Court that a lower sentence should have been imposed apply more to the count of attempted armed robbery, so that I would agree that the sentence for that count should be reduced, at least according to present accepted levels of sentence for that serious offence. For myself, I would have imposed a heavier sentence for the count of intentionally causing serious injury, but it would not be appropriate for us to increase that sentence in the circumstances. In any event the principles in Pearce, at least as I would understand them, might inhibit imposing a heavier sentence for that count, unless in turn the sentence for the attempted armed robbery were to be reduced further.  In the light of the concessions referred to in paragraph [11] of Callaway, J.A.'s judgment, however, it is inappropriate to examine these matters further, so that I would agree in the circumstances with the sentences proposed to be substituted.

CALLAWAY, J.A.:

1. The applicant, who is now aged 47, pleaded guilty in the County Court to one count of attempted armed robbery, one count of intentionally causing serious injury and one count of recklessly causing injury, contrary of ss.75A(1) and 321M, 16 and 18 of the Crimes Act 1958. The maximum custodial sentences applicable to each of the first two offences and the third offence are 20 years' imprisonment and five years' imprisonment respectively. After hearing a plea for leniency on his behalf, to which I shall refer in greater detail below, the learned judge sentenced him to seven years' imprisonment on count 1, four years' imprisonment on count 2 and three months' imprisonment on count 3. By operation of s.16(1) of the Sentencing Act 1991, that resulted in a total effective sentence of seven years' imprisonment. His Honour fixed a non-parole period of four years and made a declaration regarding pre-sentence detention.

1. The applicant seeks to appeal on four grounds:

"1.The learned sentencing judge failed to give sufficient weight to the applicant's prospects of rehabilitation.

2.The learned sentencing judge failed to place sufficient weight on the applicant's –

(a)plea of guilty and the remorse reflected therein;

(b)lack of prior convictions.

3.The learned sentencing judge failed to give sufficient weight to the applicant's physical disability.

4.The sentence is manifestly excessive."

1. The Court has been supplied by the Crown with two inadequate, or at all events jejune, summaries of the evidence.  Accordingly I shall adopt the short account in the learned judge's sentencing remarks.  After referring to the applicant's background, including an unhappy marriage that had ended in divorce, his Honour said:

"About the time of these offences you were in receipt of a disability pension and performed casual driving work.  On the day of the offences you failed to attend work and in the afternoon attended your local doctor.  Thereafter you drove to the Preston area seeking heroin.  In the back of your mind was the thought that High Street was an area where traders kept quantities of cash.  You found a drug dealer, made a purchase and used heroin, and then having observed the victim, Mr Boudroukas, outside his shop, decided to rob him.  You pretended to be a customer interested in buying some furniture.  Initially, you thought you might threaten him with a syringe, but being unable to lay your hands on one, you returned to your parked vehicle, obtained a hammer and went back to the shop.

You struck the victim on the head from behind a number of times, giving him no warning of the attack and therefore no chance of defending himself.  He fell to the floor and experienced at least a transient loss of consciousness.  He suffered serious physical injuries with residual effects and a nervous reaction ensued.  Symptoms still persist and psychological damage in particular is likely to continue into the foreseeable future."

Mr. Steven Kamaris saw the assault take place and closed the front door of the shop in an attempt to catch the applicant, who used the hammer to break the glass section of the door.  He then opened it and ran away.  Some of the glass fragments struck Mr. Kamaris in the face.  That injury was the subject of count 3.

1. The grounds of appeal speak for themselves and Mr. Salek advanced an argument in conformity with them.  Miss Carlin pointed out that each of the matters on which the applicant relies had been taken into account by the learned judge and she emphasized the way in which the crime had been carried out.  Whatever the degree of premeditation, counsel said, the applicant displayed a degree of nerve in its execution.  It was not simply a case of entering the store, producing a weapon and demanding money:  he engaged the victim in conversation, lulled him into a sense of false confidence, returned to his car to fetch the hammer when he could not find a syringe in his pocket and struck the victim when his back was turned not once but several times.

1. The applicant has no previous convictions.  He has illicitly used heroin but he was introduced to it for the relief of physical pain, having sustained what were accepted to be severe spinal injuries in a motor car accident in 1980.  Despite major surgery, he continues to suffer back pain and muscle spasms requiring strong pain-relieving medication, which was the fons et origo of his addiction.  As he said in answer to one of the questions in the record of interview, "I'm not a street junkie – I wasn't created a junkie on the street.  I was created a junkie in hospitals by getting tons and tons of morphine pumped into me."  The applicant did not put that forward as an excuse.  Indeed he immediately disclaimed it as such.  He also said he was disappointed and angry with himself for being "so desperate and stupid".

1. Evidence was led on the plea of the contribution he had made to his local community as the coach of the junior football club and of the high opinion in which he was held by his neighbours.  The repeated theme, in oral and documentary evidence, was that the offences were wholly out of character.  The evidence was plainly credible and it was not challenged by the Crown.  Mr. Gordon of Odyssey House testified that to say that the applicant was remorseful would be an understatement.  A report from Moreland Hall was tendered.  It recorded that, whilst on remand, the applicant had voluntarily participated in an induction group, a six week course, an eight-week course and individual counselling in an endeavour to overcome his addiction.  The report concluded:

"Mr. Leoni contributed with a high level of participation and embraced these objectives with enthusiasm.  It is the writer's opinion that Mr. Leoni is genuine about confronting his issues [sic] and furthering his potential for change.  He recognizes that change requires great dedication and feels strengthened by his abstinence from drug use.  [He is determined] to remain drug free."

1. The learned judge accepted that the evidence suggested that the applicant was a good candidate for rehabilitation but said that he was unable to ignore the fact that he was a heroin addict for whom rehabilitation would be all the more difficult because he had contracted hepatitis C.  That disease affects the liver function, which in turn poses problems in relation to the ingestion of analgesics.  Despite those reservations, his Honour continued, he was "prepared to some extent to go down the path suggested by" counsel for the applicant.  Counsel's aim had been to secure total concurrency and a lower than usual non-parole period.  It will be observed that he succeeded in both those objectives, notwithstanding his Honour's initial inclination to direct some measure of cumulation between the first and second counts. 

1. As total concurrency had been sought and obtained on behalf of the applicant, Mr. Salek disclaimed any submission either that the sentences involved double punishment of the kind discussed in Pearce v. R. (1998) 194 C.L.R. 610 or that we should structure the sentences differently if we were persuaded to re-sentence the applicant. The applicant has not been disadvantaged by that disclaimer. With some encouragement from the Bench, Miss Carlin concurred. Accordingly this case should not be regarded as an authority for or against the practice of giving full recognition to the seriousness of two related offences but permitting or directing the sentences to be served concurrently where they form part of a single or continuous episode and cumulation would infringe the principle of totality.

1. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion differently.  The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.  See, most recently, Lowndes v. R. (1999) 73 A.L.J.R. 1007 at [15] per Gleeson, C.J., Callinan, Gaudron, Gummow, Hayne and McHugh, JJ. The concept is not novel but, as their Honours said, it is basic. Before an appellate court intervenes on the ground that a judge has given too much, or too little, weight to a factor that the judge did take into account, the court must be satisfied that he or she clearly erred in that respect. As Kitto, J. said in a well-known civil case, "even if [the appellate court] considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully": see Lovell v. Lovell (1950) 81 C.L.R. 513 at 533 and compare R. v. Taylor and O'Meally [1958] V.R. 285 at 289.

1. It was submitted on the plea and before us that the judge gave insufficient weight to the applicant's plea of guilty.  Counsel below said:

"I would ask Your Honour to consider that in this case the maximum weight that can be attached to a plea of guilty should be attached in the sense that it is made at the earliest opportunity to the police who come to his home.  The police themselves confirm the comments made by Mr Leoni to them;  that he intend[ed] to hand himself in and that from the very point of being discussed told the police of his involvement in this crime and went on to make a confessional statement.  He pleaded guilty, indicating his plea at the committal proceeding at the first opportunity."  (Emphasis added.)

There were witnesses to the offence and the applicant's car, parked in the vicinity, led the police to him.  I am not at all persuaded that his Honour failed to give due weight to his plea of guilty or that the applicant was entitled to what is conveniently, if loosely, called the maximum discount. 

1. It was also contended that the judge undervalued the rehabilitation from his addiction that the applicant had achieved and the extra burden that incarceration would impose on a man with his physical disabilities.  Directing myself in accordance with the long line of authorities of which Lowndes v. R. is the most recent, I cannot say that his Honour's discretion miscarried on account of either of those factors considered individually. 

1. Ground 2(b) calls to mind the well known passage in R. v. Smith (1982) 7 A.Crim.R. 437 at 442, where Starke, J. said:

"Two matters which the learned judge referred to and which, in my judgment, are of essential importance are, firstly, the good character of the applicant.  He had reached mature years and indeed middle age without ever falling foul of the law.  He had, the evidence reveals, lived an industrious life and in recent years branched out on his own.  He had raised a family.  In my opinion, in circumstances of this nature, a convicted person is entitled to call in aid his good character and is entitled to have the court give  it the greatest weight.  What weight it will have depends, of course, on the character of the offence committed.  In some cases, like armed robberies and so on, the fact of good character would have very little weight at all.  In other cases, such as this, where a man has lived an honest life and has found himself in circumstances perhaps through no fault of his own and fell to temptation, the situation is quite different.  Indeed the old First Offenders Act 1958 (Eng.) rather indicated that the court should not, except in exceptional circumstances, make a custodial order against a man who had reached maturity and who had led a blameless life.  Of course, there must be many qualifications to that rule, but it is, I think, one that must be borne in mind, and in this case, in my opinion, must receive the greatest possible weight."  (Emphasis added.)

Armed robberies vary greatly:  see, for example, R. v. Nguyen [1997] 1 V.R. 551 and R. v. P.J.K. (unreported, Court of Appeal, 8th September 1997).  The present is probably not the kind of armed robbery that Starke, J. had in mind, but his Honour's words induce caution before one would uphold ground 2(b) in its own right.

1. I come finally to another aspect of ground 1, not rehabilitation from addiction but rehabilitation in the wider sense, and to the contention that the sentence is manifestly excessive.  It is with those grounds in mind that I have twice referred in these reasons to my unwillingness to uphold other grounds considered individually or standing alone.  The strength of the applicant's case is not that one or another ground was given insufficient weight but that the offences were proved on the balance of probabilities to be aberrant behaviour on the part of a man in his middle 40s who was of good character and had other mitigating factors in his favour.  The evidence that the offences were out of character was both cogent and unchallenged.  It was, in my view, the salient feature of the material led and tendered on the plea, although it is understandable that it was overshadowed by the brutal and cowardly attack on Mr. Boudrakis. 

1. I am far from saying that every middle-aged person of good character who commits an aberrant crime should receive greater leniency than his Honour accorded in this case. Every case depends on its own facts, but I consider that, if this applicant, in his state of health, were required to serve every day of a sentence of seven years' imprisonment, which is the basis on which both common law and statute require the question to be considered, the punishment would be clearly "more severe than that which is necessary to achieve the purpose or purposes" that are relevant to the instant case: cf. s.5(3) of the Sentencing Act.  For the reasons given in this paragraph and in [16], I would re-sentence the applicant to five-and-a-half years' imprisonment on count 1.  I would confirm the sentences on counts 2 and 3.

1. If the other members of the Court concur in that disposition, it will become incumbent upon us to fix a new non-parole period.  It by no means follows that the period we fix would have to be less than that fixed by the judge.  It would still be open to us, in the exercise of our own discretion, to consider that four years was the minimum time that justice required the applicant to serve having regard to all the circumstances of the case.  The principles applicable to non-parole periods were examined by the Chief Justice, Batt, J.A. and me in R. v. VZ [1998] VSCA 32. It is unfortunate that it has not been reported. I refer especially to [3], [12-15], [18] and [22-23]. I do not repeat them. Mr. Salek asked us, if we re-sentenced the applicant, to give him an incentive to persevere in his rehabilitation; but every non-parole period has a penal element and, in a case such as the present, it should not be so low as to undermine the objective of general deterrence. I would fix a non-parole period of three years and nine months.

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