R. v. Mai
[2000] VSCA 184
•19 September 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 8 of 2000
| THE QUEEN |
| v |
| CANH VAN MAI |
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JUDGES: | PHILLIPS, C.J., CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 September 2000 | |
DATE OF JUDGMENT: | 19 September 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 184 | |
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Criminal law – Sentencing – Aggravated burglary and armed robbery – Trafficking in heroin – Young offender – Mitigatory factors – Concurrency and cumulation – Inappropriate structure of sentence – Not manifestly excessive – R. v. Blick (1999) 108 A.Crim.R. 525.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms. S.E. Pullen | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. M. Kowalski | Valos Black |
PHILLIPS, C.J.:
I shall ask my brother Charles to give the first judgment in this matter.
CHARLES, J.A.:
The appellant, who was born on 8 November 1979, pleaded guilty on 17 January 2000 to two presentments, one of which alleged one count of trafficking in heroin and the second alleged two counts of theft, one count of aggravated burglary and one count of armed robbery. The appellant admitted ten prior offences, including two charges of attempted theft, one of burglary and three of theft, all of which had been dealt with in 1994 and 1996 in the Children's Court, and none of which had resulted in conviction. The maximum penalty for trafficking in heroin was 15 years' imprisonment or a fine of $100,000, and the maximum penalties for aggravated burglary and armed robbery were in each case 25 years' imprisonment.
After a plea, during which the appellant's mother was called to give evidence on his behalf, the learned judge sentenced the appellant on the count of trafficking in heroin to imprisonment for two years and six months, on each count of theft to imprisonment for six months, and on the counts of aggravated burglary and armed robbery to five years' imprisonment in each case. The total effective sentence was five years' imprisonment and the appellant was directed to serve a minimum of three years before being eligible for release on parole.
The appellant now appeals against the sentence imposed on the grounds that in all the circumstances it was manifestly excessive and that the judge failed to take into account or gave insufficient weight to the appellant's age, his limited role, that he made full admissions to the police and pleaded guilty at an early stage and that he had taken steps to address his drug problem. The appellant was granted leave to appeal under s.582 of the Crimes Act 1958 on 7 June 2000.
The facts giving rise to these offences are as follows. Late in the night of 15 October 1998 five armed and disguised persons (one of them, the appellant) broke into a house in South Springvale through a loungeroom window. The house was then occupied by a woman and her seven-year-old daughter, the father not yet having returned home at the time of the break-in. The child was asleep in a bedroom, the mother was sewing in another room. After they had obtained entry, the offenders eventually confronted the mother, threatened to kill her with a knife, and threatened to harm and abduct her child. One of them took hold of the woman, placed his hand over her mouth, and forced her back into the bedroom. Her wrists were bound together with plastic ties and she was forced to the ground and held by one intruder, while another gagged and blindfolded her. The offenders continually demanded money and jewellery and ransacked the house in their search for items of value. Personal jewellery was taken from the woman by one offender. Another threatened to slash her throat if she did not reveal where other money and jewellery were being hidden. Her daughter came into the room, after yelling for her mother, and one of the intruders seized her and held a large knife close to her arms. This offender repeatedly threatened to cut off the young child's arms and gestured as if to do so if the woman did not tell them where money was hidden. The woman, who was naturally terrified, pleaded for the release of her daughter, saying that there was no hidden money in the house. One of the intruders replied that they were taking the child with them and demanded a ransom for her return. They were then interrupted by the ringing of a mobile telephone, after which all decided to leave. The child was released and the mother was told not to contact the police. Being unable to find any cash in the house, the intruders left, taking with them some jewellery, a cassette disc player, a video recorder, a video camera and a photographic camera. They also stole a Ford motor vehicle which was in the driveway of the premises and used this car to make their getaway. Eventually the woman and her daughter left the house and went to a neighbour who raised the alarm. Police subsequently cut her arms free. Both victims were very traumatised by the offences.
The intruders had driven to the house in another stolen car, a Mazda, which was left outside the victims' house. A subsequent search of the Mazda revealed that it contained, among other things, a meat cleaver, a Samurai sword, a lino cutter, a screwdriver and a skivvy top. Fingerprints of the appellant were found in the Mazda and in such a position as to suggest that he had at some time driven the car. The stolen Ford was later found abandoned in South Springvale and, when recovered, contained a meat cleaver similar to the one discovered in the Mazda.
During the evening of 17 March 1999 police carried out a raid on a house at 482 Barkly Street, West Footscray, which was then occupied by the appellant. The appellant and others were inside the house at the time. Police observed electronic scales, balloons, silver foil and other equipment used in drug trafficking in the loungeroom of the premises. The appellant was searched and found to have a balloon of heroin in his pocket and another quantity of heroin wrapped in plastic was found hidden in the rear yard of the house. In total the police found some 3.5 grams of heroin which was subsequently analysed to show a purity of 70%. The appellant admitted to being a smoker of heroin.
The appellant was interviewed by police twice on 17 March 1999. In the first interview he admitted his occupation of the Barkly Street premises and that the heroin found there belonged to him. He said he had been trafficking in heroin for some three weeks leading up to that date. He stated that he sold the drug for varying prices, anywhere between $20 for a small cap up to $400.
The second interview with the appellant related to his involvement in the house break-in and robbery. The appellant told the police that he had been recruited by another to take part in the break-in. He said he was picked up in the stolen Mazda and driven to South Springvale, where the break-in occurred. He said that five men, including himself, committed the offence. He admitted to having himself entered the premises while armed with a screwdriver and while his face was covered with an item of clothing. He denied that he ever intended to use the screwdriver as a weapon. The appellant also admitted to knowing that his co-offenders were armed with meat cleavers and other sharp implements. He said he participated in the search of the premises for money. He heard both the victims screaming and also heard the others demanding money from the woman. He claimed that he was unaware of the threats to harm the woman and her daughter. He also denied that he used any physical violence. He said he saw his co-offenders placing stolen household items into the boot of the Ford in which they all left the scene.
The case made for the appellant during the plea was that at the time of the burglary he was an unemployed heroin user and he needed money both to support his habit and to live. He had been using heroin since he was around 16 years old, smoking heroin rather than injecting it. At the time of the plea he had been in custody for ten months and had undertaken a number of random urine tests, all of which had been clear; and it was submitted that he had taken steps voluntarily to address his drug problem. As to the offence itself, his counsel put to the sentencing judge that when he was asked to participate in the raid he was told that he simply had to run into the house to get money, and that when he was in the house and heard the screams of the woman and her child he then panicked and wanted to leave. The others, however, told him to keep searching and he did so because he was scared. When they left the house and returned to Sunshine, the co-offenders searched him to see if he had taken anything from the house and then told him to leave. It was said that he got nothing from the burglary. The appellant, however, did not give evidence during the plea.
Mr Kowalski, who appeared in this Court for the appellant, submitted that the appellant's personal circumstances offered powerful features in mitigation of penalty notwithstanding that serious offences had been committed by him. His role in the aggravated burglary was said to be much less active than that of the co-offenders, he having been described by the informant as a "foot soldier" who had not himself confronted or seen the victims of the burglary at any time. He had pleaded guilty at an early stage of the proceedings, made full admissions and shown a degree of remorse for his criminality both in his statements in the record of interview and in the plea. He was a young offender, only 18 at the time of the first group of offences, and had no prior convictions for trafficking in heroin. Accordingly, it was submitted that even in a case of serious offending, the rehabilitation of a youthful offender was an important and indeed paramount consideration for the court in fashioning an appropriate penalty, outweighing considerations of general and specific deterrence. There was evidence before the court that the appellant had taken measures aimed at facilitating his rehabilitation and that he had completed a drug education program whilst in custody. He had not previously been imprisoned in an adult gaol. Accordingly, while an actual adult custodial term was appropriate given the nature of the offending and the appellant's antecedents, it was submitted that lower terms would have satisfied the need for deterrence and punishment whilst making more appropriate provision for his rehabilitation.
Before I read the transcript of the plea, I could not understand the structure of the total effective sentence. The two thefts, the aggravated burglary and the armed robbery took place on 15 and 16 October 1998. The trafficking in heroin, which was entirely unrelated, took place between 24 February and 17 March 1999. During the plea the judge drew attention to the fact that the trafficking was a separate matter. The prosecutor acknowledged that that was so but said, "[T]he Crown is not asking you to consider accumulating sentences as between the two presentments." A little later the following exchange took place:
"His Honour: In other words, so far as the Crown is concerned the trafficking would merge into the head sentence in respect of the others?
Prosecutor: Yes, depending on what you, Your Honour, took as to the seriousness of it.
His Honour: Yes, thank you. Well, you needn't worry about - you needn't address me on that. I take it, Mr Walsh, you'd agree with that, would you
Mr Walsh: I certainly would, Your Honour, yes."
Mr Walsh was counsel for the appellant below.
It is, I think, unfortunate that the prosecutor took this course, and that the judge acceded to it. A measure of cumulation was plainly open to his Honour and would, with respect, have been appropriate. But the adoption of the course proposed by the prosecutor, and understandably embraced by counsel for the appellant, has resulted in the imposition of a sentence which might well have been thought vulnerable on appeal.
One is naturally reluctant to interfere with a sentence solely because it should have been structured differently. Compare R. v. Mantini [1998] 3 V.R.340 at 348-349. A sentencing judge must be given great latitude in that regard. The problem is that the course adopted in this case increases the risk of the sentences of five years' imprisonment being thought to give insufficient weight to specific mitigatory factors or to be manifestly excessive having regard to the appellant's youth. If his Honour had imposed lower, but still substantial, sentences for the aggravated burglary and the armed robbery and directed that part of the sentence imposed for trafficking be served cumulatively, the appellant would have been left much less room for argument.
On the other hand, although the appellant was only 18 at the time, and may properly be described as only a foot soldier, the crimes to which he was a party were very serious indeed. The five offenders broke into a private residence at night, knowing that it was likely to be occupied. They were armed and disguised. They terrorised the mother and her seven-year-old child, threatening to chop off the girl's arms, and to abscond with her. Even if the appellant did not himself threaten the victims, what took place was well within their common purpose. The appellant's previous offences, even though in the Children's Court, included going equipped to steal, burglary and theft.
The judge specifically took into account in his sentencing remarks the personal circumstances of the appellant. He took into account the role of the appellant, his plea of guilty and admissions to the police. The judge was entitled to have doubts about the extent of the appellant's remorse and his prospects for rehabilitation. As his Honour said, the truth was that the appellant "entered the house with a screwdriver and knew that the others were armed with either machetes or a knife". The judge also said -
"In this case the principle of general deterrence applies in particular to the more serious offences. In addition, the community is entitled to expect that judges of this court will deal harshly with those who traffic in heroin, and those who invade other citizens' homes. It is a fundamental right of living in a civilised society that people should be and feel safe and secure in their own home. The invasion of a victim's home by masked, armed burglars is a gross violation of that fundamental right."
I completely agree.
In all the circumstances, notwithstanding the appellant's youth and his lesser role in the events of 15 and 16 October 1998, with some hesitation I do not think it can be said that the sentence imposed in relation to any of these offences is beyond range. I should add that had I taken the view that the sentences for aggravated burglary and armed robbery were beyond range I would, in re-sentencing, have been minded to cumulate some of the sentence imposed for trafficking upon the sentences otherwise imposed.
I would dismiss the appeal.
PHILLIPS, C.J.:
I agree. In my opinion the sentences imposed were within the range.
CALLAWAY, J.A.:
I also agree. I specifically associate myself with the observations of Charles, J.A. as to the course proposed below by the prosecutor with regard to cumulation and the effect of its adoption by the judge.
Turning to another matter, raised at the outset of the hearing, our decision to dismiss the appeal is consistent with the grant of leave by a single judge. That is because of the difference between the role of the single judge considering an application for leave to appeal and the role of the court hearing the appeal if leave is granted. I referred to these matters, with the concurrence of Batt, J.A., in R. v. Blick (1999) 108 A.Crim.R. 525 at [18-19], pointing out that it would be quite wrong for a single judge to refuse leave solely because, although there was a reasonably arguable ground, he or she considered that it would probably not be made out when it was fully argued or that the court would think that no different sentence should be passed. The first of those alternatives probably requires no elaboration, but on reflection it may be as well to explain the basis of the second. A person convicted is entitled to be lawfully sentenced once. If the sentence below is infected by specific error, the single judge has no power to re-sentence, but a court of three does.
PHILLIPS, C.J.:
The order of the Court is that the appeal is dismissed.
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